Employers had historically sought confidentiality during an ongoing investigation in order to protect the integrity of the investigation. Then a 2015 decision dramatically limited an employer’s right to require confidentiality during internal investigations. However, a recent National Labor Relations Board (NLRB) ruling has reversed and held that workplace rules that require employees to keep pending workplace investigations confidential are generally legal.
Greater Confidentiality in Workplace Investigations
The National Labor Relations Act says employees are allowed to discuss working conditions. In Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson (368 NLRB No. 144, 12/16/19) the NLRB ruled that employers do not violate the Act when they create facially neutral policies requiring employees to maintain confidentiality during open workplace investigations. The 3-1 decision, which overruled a 2015 Obama Board decision, arose after a thrift store retailer prohibited its employees from discussing investigations in its Code of Business Conduct and Ethics and in its Loss Prevention Policy.
In the earlier decision, Banner Estrella, the NLRB had previously concluded that employers could not require employees to keep investigations confidential unless they could show a legitimate and substantial business justification that outweighed its employees’ rights to discuss working conditions. In Banner Estrella, the Board shifted the burden to the employer to establish, on a case-by-case basis, that its interests in conducting a specific confidential workplace investigation outweighed the employees’ interests in exercising their Section 7 rights. The employer’s interests were not even considered unless and until the employer demonstrates, with respect to each specific investigation in which confidentiality was required, that “witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”
What This Means for Employers
The Apogee Retail decision is welcome news for employers seeking to curb gossip in an effort to obtain a prompt and accurate resolution of internal complaints. In recent years with the increase in harassment and retaliation complaints, employees and employers both needed an effective system in place for addressing workplace complaints. Confidentiality assurances during an ongoing investigation play a key role in serving the interests of both employers and employees. Providing employers more flexibility to instruct those involved in workplace investigations to keep them confidential, should provide greater protections for the complainant as well as those who may have been wrongly accused of improper acts in the workplace.