NLRB Does an About-Face on Confidentiality During Investigations – Sanity Prevails

For the last five years, employers and workplace investigators nationwide have been forced to tiptoe around the subject of confidentiality during workplace investigations.  You’d like to get everyone’s independent recollection of events, but you don’t want to trample on an employee’s Section 7 rights under the NLRA.  So instead, you politely request that employees don’t discuss the topic of the investigation with other employees, but remind them they can always consult with the union representatives.  Soon enough, every employee in the building knows about the investigation, and everyone’s stories line up — completely exonerating the respondent from any wrongdoing.

Well, in another employer-friendly decision from the current board, Apogee Retail LLC d/b/a Unique Thrift Store, it reversed course on confidentiality during investigations, and ruled that such policies, limited to the duration of the investigation, are generally lawful.

Board Decision (1)

In Unique Thrift Store, the employer’s Code of Business Conduct and Ethics provided, “Team members are expected to cooperate fully in investigations and answer any questions truthfully and to the best of their ability. (decision below) Reporting persons and those who are interviewed are expected to maintain confidentiality regarding these investigations.”  The policy also provided for discipline if employees discussed the investigation or their interview with other employees.

The reason for this was the NLRB’s decision in Banner Estrella Medical Center, where the previously left-leaning Board decided that the NLRA required that for an employer to require confidentiality during a workplace investigation, it had to prove its interests in preserving the integrity of an investigation outweighed the interests of employee Section 7 rights.  Put more simply, employers had to prove that if employees were not required to keep what they discussed confidential, employees would likely share information about the investigation while it was still in progress (good luck getting witnesses to admit to that).

In analyzing whether the employer’s rule violated employees’ Section 7 rights, the Board immediately overruled its previous decision based on the Banner Estrella decision’s failure to consider Supreme Court precedent.  It recognized the Board’s duty to balance legitimate business interests with employee rights, its previous failure to consider the importance of confidentiality assurances during ongoing investigations, and inconsistency with federal guidance.  It noted that the employee-friendly EEOC endorsed confidentiality during employment investigations due to issues with harassment that can take place during those investigations.

The Board found that the Boeing test from 2017 was the appropriate test for facially neutral work rules.  In that test, the Board evaluates the nature and extent of the potential impact on employee rights and the legitimate justifications associated with the rule.  After applying the Boeing test to the rule, the Board held that investigative confidentiality rules are lawful, to the extent they apply to open investigations.  However, the ruling only goes so far, and stated that blanket rules prohibiting discussion of investigations even after the investigation are over are not necessarily facially neutral.  Those will need to be evaluated individually to determine if they trample on employee rights.

This rule should work to guide employer rulebooks and investigator advisories going forward (at least until another president is elected and the board changes its mind again).  Employers can feel confident directing their employees to maintain confidentiality during workplace investigations, and hopefully preserve the independence of employees’ statements.  However, it is important to remember in Minnesota, due to Minn. Stat. §13.43 of the Government Data Practices Act, confidentiality may not be promised to complainants, witnesses, and others involved in workplace investigations involving public employees.  We, at the Wiley Law Office, work in situations such as this on a daily basis.  If you or your organization need assistance with conducting internal investigations or guiding your own internal investigators, contact the Wiley Law Office, for investigative experience that works.