National Labor Relations Board Disapproves Gag Orders in the Workplace

National Labor Relations Board Disapproves Gag Orders in the Workplace

The National Labor Relations Board continues to attract a lot of attention for its active protection of the rights of non-unionized employees.  The National Labor Relations Act was designed to outlaw the union-busting practices of some employers.  But it has always applied generally to all workplaces that intersect with commerce, which is nearly everyone.

The Board has recently challenged an employer’s blanket instruction to employees that they must keep mum about an ongoing workplace investigation.  When a complaining employee was told not to talk about the complaint with co-workers, the Board held that the instruction interfered with employees’ rights to meet and discuss areas of common interest.  It’s related to the possibility of unionization, because without the option of talking among themselves, employees would never organize.

The Board did not foreclose the possibility that an employer could have an interest in keeping certain investigations confidential while they were ongoing.  It needed to have a reason, however, not merely announce a rule.  “To justify a prohibition on employee discussion of on- going investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.”

Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (2012), decided July 30, 2012,

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