Banner Health System v. NLRB

Case Updates

The D.C. Circuit held that the NLRB's order invalidating confidentiality was reasonable and supported by evidence. The peition for review was granted and remanded to the NLRB.

The U.S. Chamber joined an amicus coalition of a dozen trade associations to urge the D.C. Circuit to reject an NLRB order mandating that, if employers wish for the contents of an ongoing workplace investigation to remain confidential, they must prove that the investigation will be corrupted if confidentiality is not preserved.

The brief argued that the NLRB's order imposes a novel and impractical burden on employers to justify confidentiality, ignoring legitimate business justifications for maintaining confidentiality and discounting the need for discrete treatment of sensitive issues in the workplace. Further, the brief argued that the NLRB's new standard impermissibly clashes with other federal employment laws governing workplace investigations, including many that directly or indirectly require employers to conduct an effective, and confidential, investigation when an employee alleges a violation.

The American Hotel and Lodging Association, Associated Builders and Contractors, Coaltion for a Democratic Workplace, College and University Professional Association for Human Resources, Council on Labor Law Equality, HR Policy Association, International Foodservice Distributors Association, National Association of Manufacturers, National Association of Wholesaler-Distributors, National Federation of Independent Business, and Society for Human Resource Management joined the U.S. Chamber in filing this brief.

Maurice Baskin and Elizabeth Parry of Littler Mendelson, P.C. served as co-counsel for the amici.