On Tuesday, December 17, 2019, in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the National Labor Relations Board (the Board or NLRB) held that requiring employee confidentiality during workplace investigations does not constitute an unfair labor practice under the National Labor Relations Act (the Act or NLRA). This is yet another employer-friendly decision in a series of recent rulings overturning Obama-era Board precedent.
Back in 2015, the Board held that employers could require confidentiality during workplace investigations only where they demonstrated that confidentiality was necessary to preserve the integrity of the investigation. See Banner Estrella Med. Ctr., 362 NLRB 1108 (2015), enforcement denied on other grounds 851 F.3d 35 (D.C. Cir. 2017). This standard created a difficult situation for employers, placing the burden on them to determine if there was a need for confidentiality that outweighed any potential impact on workers’ NLRA rights. Moreover, the standard also conflicted with guidance from the Equal Employment Opportunity Commission (EEOC), which encourages employers to keep investigations confidential to protect victims and to encourage reporting.
In Tuesday’s ruling, the Board applied the new Boeing standard for determining the legality of facially neutral workplace rules, concluding that rules requiring employee confidentiality during workplace investigations are presumptively lawful. The Board’s three Republican members – Chairman John F. Ring and Members Marvin E. Kaplan and William J. Emanuel – concluded that such rules: (1) enable employers to respond quickly to misconduct through a prompt investigation; (2) protect employee privacy and ensure there will be no retaliation by other employees; and (3) ensure the integrity of investigations. While the Board determined that such rules may impact workers’ NLRA rights, it concluded that any such impact would be “comparably slight” in light of the employer’s justifications for the rule.
The Board noted, however, that the rules at issue in Apogee did not clearly limit confidentiality to the duration of the investigation, and therefore were not presumptively lawful and required an individualized analysis. The Board remanded the case for further consideration of whether the employer had a legitimate justification for requiring confidentiality after the investigation ended, and if the justification outweighed the effect on workers’ rights under the NLRA. The Board also cautioned that the rules at issue did not broadly prohibit employees from discussing discipline or the events that led to the investigation. Rather, the rules that were deemed lawful in this case imposed narrow prohibitions on employees, limited to restrictions on discussing the investigation itself or interviews conducted during the investigation. The Board’s lone Democrat, Lauren McFerran, dissented from the ruling, arguing it will deter victims of sexual harassment from warning other employees and will hinder union activists from conferring with their union and co-workers.
The Board’s ruling is a win for employers. Not only does it align the NLRB standard with the EEOC’s guidance, it also relieves some of the pressure that employers face when handling highly sensitive investigations, such as allegations of sexual harassment or substance abuse, which merit confidentiality. Employers can take advantage of this ruling by implementing (or bringing back) policies that require confidentiality during workplace investigations.