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Regulators Challenge Confidential Internal Investigations

Experts say employers should determine confidentiality on a case-by-case basis to avoid liability.

By Adele Nicholas | Updated on November 08, 2012
whistleblowerWhen James Navarro arrived at his job as a medical equipment technician one morning in February 2011, something wasn’t right. Due to a broken water pipe in the Arizona hospital where he worked, employees didn’t have steam and hot water to follow their normal protocol for sterilizing surgical equipment. Navarro’s supervisor instructed him to use a different sterilization machine and get hot water from the break room coffee maker. Concerned about patient safety, Navarro refused to follow his supervisor’s instructions and complained about the problems to his co-workers.

The supervisor reported Navarro to human resources. Finding that Navarro had been insubordinate, the hospital issued him a nondisciplinary coaching. Shortly thereafter, Navarro received a subpar performance review.

Navarro filed a charge of unfair labor practices with the National Labor Relations Board (NLRB), alleging that the coaching and poor performance review were retaliation for engaging in a protected activity—complaining about job conditions. An administrative law judge (ALJ) determined that Banner Health System, which owns the hospital where Navarro worked, did not violate the labor laws. On appeal, the NLRB did something no one expected.

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