By Nelson Cary and Lauren Sanders
As many employers know, confidentiality can be essential to performing workplace investigations. Last month, in Apogee Retail, LLC, a 3-1 decision, the NLRB agreed. Applying the test for facially neutral rules established in The Boeing Company, 365 N.L.R.B. No. 154 (2017) (discussed here), the NLRB held that workplace rules that require employees to keep pending workplace investigations confidential while the investigation is open are generally legal. The decision arose after a thrift store retailer, Apogee Retail, prohibited its employees from discussing investigations in its Code of Business Conduct and Ethics and in its Loss Prevention Policy.
In finding that confidentiality rules are generally legal, the NLRB overruled a 2015 Obama Board decision. In that decision, Banner Estrella, the NLRB had concluded that employers could not require employees to keep investigations confidential unless they could show a legitimate and substantial business justification that outweighed its employees’ Section 7 rights.
The NLRB explained that Banner Estrella had inappropriately placed the burden on employers to establish that its interests outweighed their employees’ Section 7 rights. According to the NLRB, the reasoning of Banner Estrella not only contradicted Supreme Court and NLRB precedent but also “failed to recognize and weigh the importance of employers in providing, and of their employees in receiving, assurances that reports of incidents of misconduct . . . will be held in the strictest confidence by all concerned, management and workers alike.” The NLRB further noted that its new decision aligns the NLRB’s stance on confidentiality of investigations closer to other federal guidance, including guidance from the EEOC and OSHA.
Labor professionals should note, however, an important caveat to the NLRB’s holding. If a confidentiality rule is not limited to an open investigation, the NLRB will treat the rule as a Category 2 rule under Boeing. Thus, an employer will need to prove that legitimate justifications outweigh any post-investigation adverse impact on NLRA-protected rights. The NLRB remanded the case to an ALJ to conduct the required balancing of the competing interests because the rule at issue was silent as to the duration of the confidentiality obligation.
Member McFerran (D) dissented. McFerran argued that the NLRB’s decision will prevent employees from seeking the help of their coworkers, union, and the NLRB. McFerran called the decision “out-of-touch with realities of the modern American workplace and the goals of federal labor law” and warned that it could even prevent victims of sexual harassment in the workplace from seeking help.
The NLRB’s decision means that employers have more ability to provide instructions to those involved in workplace investigations to keep them confidential. This should improve an employer’s ability to address effectively workplace misconduct of many types, including sexual and other forms of unlawful harassment. But, as a result of the caveat noted above, a prudent employer will revisit any confidentiality instructions to ensure that they will pass muster under the Boeing test, as the NLRB applied in Apogee Retail.