Workplace Investigations

Mandating confidentiality during workplace investigations is not unlawful

By January 16, 2020May 8th, 2020No Comments
Mandating confidentiality during workplace investigations is not unlawful - lisa sherman

On December 17, 2019, in Apogee Retail LLC dba Unique Thrift Store, 368 NLRB No. 144 (2019), the National Labor Relations Board (“NLRB”), held that requiring confidentiality during workplace investigations is lawful.  This ruling overruled the NLRB’s recent precedent, Banner Estrella Med. Ctr., 362 NLRB 1108 (2015) enforcement denied on other grounds, 851 F.3d 35 (D.C. Cir. 2017), which held that such mandates infringes on the rights of employees under the National Labor Relations Act to engage in “concerted protected activity” which includes the right to discuss discipline or ongoing disciplinary investigations involving them or their coworkers.

The decision relieves employers of the prior burden to establish on a case-by-case basis, that its interest in conducting a specific confidential investigation outweighed the employees’ interest in exercising “concerted activity rights.” It also ends the conflict with the Equal Employment Opportunity Commission (“EEOC”) who encourages employers to maintain confidentiality of discrimination investigations to the extent possible to encourage victims to report.

The NLRB’s ruling 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 legal.  These 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 the investigation. While the Board concluded that these rules may impact employees’ NLRA rights, such impact would be “comparably slight” in light of the employers’ justification for confidentiality in workplace investigations.

However, the Board remanded the case for further consideration as to 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.  In addition, the Board warned that the rules at issue in the case did not broadly prohibit employees from discussing discipline or the events that led to the investigation.

Take-Away for Employers

Apogee Retail is a big win for employers who have struggled with complying with Banner. This relieves some of the pressure employers face when handling highly sensitive investigations, such as allegations of sexual harassment, battery, or substance abuse, for example, which requires confidentiality to the highest degree.  Employers should implement (or in most cases bring back) policies that require confidentiality during workplace investigations and train internal investigators of the same.  Confidentiality that bar only disclosures of what is discussed in an investigation prevent witness coaching, aligning of stories, retaliation, privacy violations and the chilling of cooperation which are all significant barriers for getting to the truth.  Requiring confidentiality in investigations keeps a check on the rumor mill and goes a long way towards conducting fair, unbiased workplace investigations.

For more information on preparing policies mandating confidentiality in workplace investigations, contact Lisa Sherman at 424-249-3631 or [email protected].