ACC Files Amicus Over NLRB Decision Limiting Confidentiality in Internal Investigations

ACC Position: 

On January 21, 2016, the ACC filed an amicus brief in the United States Court of Appeals for the District of Columbia, contesting the decision in Banner Health System v. National Labor Relations Board, a case that presents serious challenges to established confidentiality protections within internal compliance investigations.

The Banner Health decision involved an investigation into potential employee insubordination in which the employee reporting the issue was asked to keep it confidential pending the investigation. The National Labor Relations Board found that the request for confidentiality violated the National Labor Relations Act. Notably, the Board required a case-by-case determination whether confidentiality is appropriate and, further, allowed confidentiality only where companies could demonstrate on “objectively reasonable grounds” that an investigation was likely to be compromised without it.

This decision is in direct conflict with established guidelines from other agencies, such as the Equal Employment Opportunity Commission, which advises companies to assure employees their complaints will be investigated confidentially. By constraining the circumstances in which confidentiality applies, the Board forces employers to choose between complying with established federal and state mandates and the Board’s order.

Confidentiality not only protects innocent employees from embarrassment and retaliation, but it has also been shown to encourage voluntary participation in investigations. If left to stand, the decision by the court will severely compromise the integrity of internal investigations and place companies in an impossible-to-reconcile dilemma.

Click here to view amicus brief.