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http://theemplawyerologist.com/2013/09/04/making-sense-of-the-eeoc-position-on-confidentiality-in-workplace-investigations/?goback=.gde_783587_member_271084865#!
The NLRB position:
Last
year, the National Labor Relations Board made it much more difficult for
employers to compel confidentiality among employees who participate in internal
investigations.
[Banner Health System d/b/a/ Banner Estrella
Medical Center, 358 NLRB No. 93 (July 30, 2012)]
Facts.
Banner operated a hospital located in Phoenix,
Arizona, that provided inpatient and outpatient medical care. James Navarro
worked for Banner as a “sterile technician” for about three years. The central
processing sterile department (CPSD) employed 13 sterile processing
technicians, operating 24 hours a day, 7 days a week with three shifts.
Sterile processing technicians were
responsible for the proper care and handling of all surgical instruments. These
employees were required to utilize equipment according to the manufacturer's
recommendations and hospital policy and perform all functions according to
established policies, procedures, regulatory and accreditation requirements, as
well as applicable professional standards.
On Saturday, February 19, 2011, Navarro
was working the day shift. Around 9 o’clock that morning, he learned that there
was a lack of hot water and steam pressure. He spoke to an employee from the
facilities department, who advised him that the steam pipe needed to be fixed,
that there would not be any hot water, steam pressure, or heat.
Navarro then contacted House Supervisor
Cecilia Dicob and informed her of the problem. Next, Navarro called Ken
Fellenz, senior manager of the CPSD department. Navarro informed him that he
would not be able to sterilize the surgical instruments due to the broken steam
pipe, and that there were six operating surgeries scheduled for that day. He
also informed Fellenz that there were labor and delivery instruments that were
going to be used and that the surgery department had clean surgical instruments
for surgeries that day.
Fellenz ordered Navarro to use the
Sterrad machine to sterilize the labor and delivery instruments. The Sterrad
machine was a low-temperature sterilizer that used hydrogen peroxide as the
sterilant. The normal procedure was that the Autoclave, a large steam
sterilizer, was used for the labor and delivery instruments. The Autoclave
could not be used that day because of the lack of steam. Navarro told Fellenz
that he was unaware that the Sterrad machine could be used, as it was not the
established procedure.
After speaking with Fellenz, Navarro
began researching whether the Sterrad machine could be used to sterilize the
labor and delivery instruments. Navarro found no documents supporting the use
of the Sterrad machine. He then contacted Muriel Kremb, lead coordinator. Kremb
told Navarro to use hot water from the coffee machine in the break room for the
first step in the cleaning process of the labor and delivery instruments.
Navarro stated that these procedures were not established protocol and that
somebody could get sick. Navarro did not clean or sterilize the labor and
delivery instruments that day.
That same day, employee Ruth Hernandez
called Navarro to inform him that she might be late. Navarro told Hernandez
that she might not have to come in because there was no steam. Hernandez called
Kremb and was told to report to work. When Hernandez arrived at work, Navarro
expressed his concern about the procedures suggested by Fellenz and Kremb.
Navarro stated that he could not find documentation to support the procedure
recommended by Fellenz and Kremb.
On February 20, when Navarro arrived at
work he found that all the instruments had been cleaned. Navarro discussed with
employee Curtis Wilks his concerns about using hot water from the coffee
machine. Navarro next spoke to House
Supervisor Dicob on two occasions. Navarro told Dicob that he wasn't trying to
be insubordinate but that he did not feel comfortable using the methods
directed by Fellenz and Kremb, because this was not established procedure.
Dicob answered that she was trying to find a solution to the steam pipe issue.
After speaking with Dicob, Navarro spoke to Nurse Mary Hedges. Navarro told Hedges
of the procedures he was instructed to follow and asked Hedges if she had ever
seen or heard anything about using the Sterrad machine or using hot water from
the coffee machine. Hedges shared Navarro's concerns.
Around noon, Fellenz called Navarro and
asked why Navarro had not used the Sterrad machine as instructed. Navarro
stated that he was uncomfortable using that procedure. Fellenz stated that
Navarro was refusing to follow instructions. Navarro stated that he was not
refusing but was uncomfortable. Fellenz angrily stated that Navarro was not
doing as instructed and that they would discuss the matter the following day.
On Monday, February 21, Navarro met with
JoAnn Odell, a human resources consultant. Navarro informed Odell that there
had been no hot water available and that he was instructed by Fellenz and Kremb
to use hot water from the coffee machine and the Sterrad machine. Navarro said
that he was uncomfortable with this procedure and that he could find no
documentation to support this procedure. Navarro expressed concern for his job.
On the morning of February 21, Fellenz
wrote a memorandum concerning the weekend and his conversations with Navarro.
Convinced that Navarro had been insubordinate Fellenz met with Joan McKisson,
director of peri-operative services. Fellenz told McKisson that he wanted to
put Navarro on corrective action for failing to sterilize instruments as
instructed by Fellenz. Fellenz and McKisson met with Odell in her office. Odell
advised against corrective action because there was no procedure in place to
support cleaning and sterilization as suggested by Fellenz. The three agreed
that Navarro would be given a non-disciplinary coaching instead.
Around 2 p.m., Navarro was called to
McKisson's office. McKisson informed Navarro that Fellenz had accused him of
refusing to follow his instructions. Navarro insisted that he had finally
followed instructions. Nonetheless, Navarro was given a coaching. The coaching
document states, “James refused to do as instructed by manager and lead tech
which directly affected patient care.” On June 2, the company issued a
memorandum stating that the coaching was removed and would not be part of
Navarro's employment record.
On February 24, Fellenz called
Navarro into his office and gave him a yearly performance evaluation. The performance review consisted of two
sections: essential functions and behaviors. On the essential functions
section, Navarro's grade was “fully meets expectations.” However, on the
behaviors section, Navarro's rating was “not fully meeting expectations.”
Navarro objected to the comments in the behavior section.
Next Navarro filed an unfair labor
practice charge, contending he was punished for engaging in protected concerted
activity, when he consulted with co-workers and encouraged them not to deviate
from what he considered the proper sterilization procedures. At the subsequent hearing, the administrative
law judge found that Navarro was disciplined not for concerted activity but for
insubordination.
The ALJ went on to examine the
company’s procedures for investigating allegations of improper employee
conduct. He found, “The ‘Interview of
Complainant’ form is not given to employees. During interviews of employees
making a complaint, Odell asks employees not to discuss the matter with their
coworkers while the investigation is ongoing. I find that suggestion is for the
purpose of protecting the integrity of the investigation. It is analogous to
the sequestration rule so that employees give their own version of the facts
and not what they heard another state. I find that Respondent has a legitimate
business reason for making this suggestion. Accordingly, I find no violation.”
Every employee hired by the company
is required to sign a confidentiality agreement. The confidentially agreement
states:
I understand that I may hear, see and create
information that is private and confidential. Examples of confidential
information are:
-
Patient information both medical and financial,
-
Private employee information (such as salaries,
disciplinary action, etc.) that is not shared by the employee,
-
Copyright computer programs, Business and strategic
plans
-
Contract terms, financial cost data and other internal
documents.
Keeping this kind of information private and
confidential is so important that if I fail to do so, I understand that I could
be subject to corrective action, including termination and possible legal
action.
On review, NLRB Members Hayes, Griffin
and Block affirmed the ALJ’s conclusions that Navarro had been disciplined for
insubordination and not for protected, concerted. However, the board majority reversed the
judge on the issue of the company’s confidentiality policy.
To justify a prohibition on employee discussion of
ongoing investigations, an employer must show that it has a legitimate business
justification that outweighs employees' Section 7 rights. See Hyundai
America Shipping Agency, 357 NLRB No. 80, slip op. at 15 (2011) (no
legitimate and substantial justification where employer routinely prohibited
employees from discussing matters under investigation). In this case, the judge
found that the Respondent's prohibition was justified by its concern with
protecting the integrity of its investigations. Contrary to the judge, we find
that the Respondent's generalized concern with protecting the integrity of its
investigations is insufficient to outweigh employees' Section 7 rights. Rather,
in order to minimize the impact on Section 7 rights, it was the Respondent's
burden “to first determine whether in any give[n] investigation witnesses need
[ed] protection, evidence [was] in danger of being destroyed, testimony [was]
in danger of being fabricated, or there [was] a need to prevent a cover up.”
Id. The Respondent's blanket approach clearly failed to meet those
requirements. Accordingly, we find that the Respondent, by maintaining and
applying a rule prohibiting employees from discussing ongoing investigations of
employee misconduct, violated Section 8(a)(1) of the Act.
Member Hayes, the only Republican on
the board, disagreed. In dissent he
wrote,
My colleagues cite Hyundai
America Shipping Agency, Inc., 357 NLRB No. 80, slip op. at 15 (2011), to
support their view. But in that case, the respondent threatened employees with
discipline if they discussed matters under investigation, and discharged an
employee at least in part because he blind copied emails between himself and
management to other employees. Id. at 14-15. Here, human resources officer
JoAnn Odell did no such thing. She merely asked employee James Navarro not to
discuss a matter under investigation with coworkers in order to protect the
integrity of her investigation. She did not threaten him with discipline. In
the judge's words, her request was merely a “suggestion.” In these
circumstances, I cannot find that the Respondent promulgated any binding rule
about employees discussing investigations.
With the reelection of President
Barack Obama, the Banner case will
remain the law of the land for at least four more years. Given this virtual certainty, management-side
labor counsel are advising clients to give the following cautionary advice to
employees involved as witnesses in internal investigations:
“I appreciate your
coming in. Reputations are at stake in
this investigation. Sensitive issues are
involved. In short, this is a very
private matter. Consequently, we will
very much appreciate your treating this matter as an extremely confidential
matter for everyone’s sake.”
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