NLRB Reverses Position on Confidentiality Concerning Workplace Investigations – Holds That Confidentiality Requirements Are Presumptively Lawful

The National Labor Relations Board, in its December 17^th decision in Apogee Retail LLC d/b/a Unique Thrift Store, has reversed its prior rule and held that employer requirements that employees treat workplace investigations as confidential are “presumptively lawful.”  The Apogee decision overturns the Board’s 2015 Banner Estrella decision, which had required that an employer seeking to impose confidentiality in connection with a workplace investigation was required to prove, on a case by case basis, that the integrity of an investigation would be compromised without confidentiality.

The Board concluded that the framework set forth in Banner Estrella improperly placed the burden of proving that confidentiality was necessary on the employer and was inconsistent with the Board’s test developed in The Boeing Company for determining whether a facially neutral rule unlawfully interfered with employees’ rights under Section 7 of the National Labor Relations Act.  In its press release, the Board explained:

The Board concluded that the framework set forth in Banner Estrella improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent. The Board also noted that the new standard better aligned with other federal guidance, including EEOC enforcement guidance.

In today’s decision, the Board applied the test for facially neutral workplace rules established in The Boeing Company, 365 NLRB No. 154 (2017), and determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful. Because the rules at issue in this case did not limit confidentiality to the duration of the investigation, the majority remanded this case for further consideration.

What Employers Should Do Now

The Apogee decision makes clear that the Board will find a rule requiring employees to respect the confidentiality of ongoing investigations of harassment, discrimination and other workplace issues while such investigations are underway.

However the Board noted that another question that arose under Apogee that requires further consideration is what level of confidentiality is presumptively appropriate once the investigation in question is concluded.

Many employers and other organizations have, since Banner Estrella was decided more than four years ago, to reconcile their obligations under Title VII and other laws against harassment and other forms of discrimination, to treat investigations with an appropriate degree of confidentiality to help protect the rights of employees and witnesses who report misconduct and participate in investigations while not unlawfully interfering with employees’ rights under the National Labor Relations Act.

With the Apogee decision employers should consider reviewing and as appropriate revising their investigation procedures, including those with respect to confidentiality, to reflect the Board’s new guidance.