NLRB: Employers can require confidentiality during investigations

Dive Brief:

Employers do not violate the National Labor Relations Act (NLRA) when they create facially neutral policies requiring employees to maintain confidentiality during open workplace investigations, the National Labor Relations Board (NLRB) said in a 3-1 decision Dec. 16 (Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson, 368 NLRB No. 144).
The board's ruling overturns precedent established in Banner Estrella Medical Center, a 2015 decision in which NLRB held that a case-by-case determination was needed to determine whether confidentiality may be required.
Instead, the Board said it applied its test for facially neutral workplace rules established in its 2017 Boeing Co. decision. Applying that standard, NLRB found that while the respondent's facially neutral investigation confidentiality rules may affect employees' NLRA Section 7 rights, the adverse impact involved is "comparatively slight" and "outweighed by the substantial and important justifications associated with the Respondent's maintenance of the rules."

Dive Insight:

The NLRB's ruling will be important for workplaces conducting investigations into illegal or unethical behavior — processes that can be challenging for employers. Most employees in a recent survey by software firm HR Acuity said they know where to report workplace issues, though more than one-third said they had little confidence those issues would be appropriately addressed.

Apogee Retail has significance beyond ongoing workplace investigations, Mark Kisicki, shareholder at Ogletree Deakins, told HR Dive in an email. "Significantly, the Board also emphasized that an employer might have legitimate reasons for mandating confidentiality even after an investigation has concluded," Kisicki said. "Such rules, however, will be evaluated on a case by case basis with the Board balancing the employer's justifications for requiring confidentiality against the potential impact on Section 7 rights."

The decision is the latest in a series of employer-friendly rulings following Boeing. Last year, the board reversed its precedent with respect to several kinds of employer policies, including those that prohibit the use of company email to unionize and those that block union representatives from public spaces within a workplace. The board also issued a ruling that changed the process by which it determines whether a worker is an independent contractor.

In a lone dissent, former board member Lauren McFerran — whose term ended Dec. 16 — called the majority's decision a "radical" break from precedent. "There can be no doubt that under the majority's new approach, workers who are the targets of workplace investigations — fairly or unfairly — will be prevented from seeking the help of their coworkers, their union, or the Board, despite the 'mutual aid or protection' guarantee of Section 7."