Key Takeaways:

  • The NLRB issued a decision that reversed course for employers with respect to the confidentiality of workplace investigations

  • The case of Apogee Retail LLC d/b/a Unique Thrift Store v. Kathy Johnson overturned the precedential case of Banner Health System d/b/a Banner Estrella Medical Center, which previously held that confidentiality mandates during pending workplace investigations were unlawful

  • The Apogee decision provides that an employer no longer has to establish that its interest in conducting a confidential investigation outweighs an employee’s interest in engaging in “concerted activity” on a case-by-case basis

Last week, the National Labor Relations Board issued a decision that reversed course for employers with respect to the confidentiality of workplace investigations. The case of Apogee Retail LLC d/b/a Unique Thrift Store v. Kathy Johnson, case number 27-CA-191574 and 27-CA -198058, overturned the precedential case of Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB No. 137 (June 26, 2015), which previously held that confidentiality mandates during pending workplace investigations were unlawful. Specifically under Banner Health, the NLRB held that such a blanket prohibition on discussing investigations interfered with the rights of unionized and non-unionized employees to “engage in concerted protected activity,” which would include the ability to discuss discipline and ongoing investigations. Although the test was further clarified in 2017 with the Boeing case analysis, the Apogee case clarifies that confidentiality of workplace investigations fits under Category 1 of the Boeing analysis where the rule is deemed presumptively legal since it does not infringe on workers’ rights or the employer’s interests outweighs the employees’ interests.

The Apogee decision provides that an employer no longer has to establish that its interest in conducting a confidential investigation outweighs an employee’s interest in engaging in “concerted activity” on a case-by-case basis. This decision also resolves the conflict that existed between the NLRB’s position and the Equal Employment Opportunity Commission’s position on investigations that routinely advocates for confidentiality of workplace investigations to permit alleged victims to freely report discrimination and harassment without fear of retribution.

Apogee is a favorable decision for employers hoping to maintain the integrity of their internal investigations so they are not subject to compromise through leaks and witness or evidence tampering. This decision will also encourage alleged victims of discrimination and harassment to come forward.