The NLRB Permits Employers to Impose Confidentiality Requirements in Ongoing Workplace Investigations

On Dec. 17, 2019, the National Labor Relations Board (NLRB) held that confidentiality mandates during the course of workplace investigations are presumptively lawful.

The case, Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), overturned a 2015 Obama-era decision — Banner Estrella Medical Center, 362 NLRB 1108 (2015), enf. denied on other grounds 851 F.3d 35 (D.C. Cir. 2017) — that set a precedent that such confidentiality mandates infringed on the rights of employees under the National Labor Relations Act to engage in “concerted protected activity.” Banner Estrella placed the burden on employers wanting to implement confidentiality mandates to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality. 

In Apogee, the NLRB 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 NLRB precedent.

The NLRB also noted that the new standard better aligned with other federal guidance, including Equal Employment Opportunity Commission enforcement guidance that advocates for employers to maintain the confidentiality of discrimination investigations to the extent possible, particularly in sexual harassment cases, in order to encourage victims and witnesses to come forward and participate in the investigative process.

What This Means for Employers

The new NLRB standard makes clear that an employer may properly require witnesses, the accuser and the accused to maintain the confidentiality of investigative information during workplace investigations. However, even with this new standard, employers are cautioned not to guarantee complete confidentiality during the investigative process, as they may, for instance, be required to disclose information learned during the course of the investigation in furtherance of their duties to conduct a thorough investigation and to take appropriate remedial action.  Employers can commit to keeping the information as confidential as practical in light of these obligations.