Following its December 2019 decision holding that confidentiality mandates during the course of workplace investigations are presumptively lawful, the National Labor Relations Board (NLRB) recently held that employers can instruct employees to keep an open internal investigation confidential. The decision is one of the first in which the NLRB applied the revised standard for confidentiality rules for investigations articulated in Apogee Retail LLC, 369 N.L.R.B. No. 144 (2019).

A Look Back at Apogee Retail LLC

Apogee Retail LLC 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 confidentiality mandates infringed on the rights of employees under the National Labor Relations Act (NLRA) 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 Retail LLC, 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.

Applying the New Standard

In Securitas Security Services USA, 369 NLRB No. 57 (Apr. 14, 2020), an employee witnessed an argument involving a coworker and a supervisor that then resulted in the coworker making a race discrimination complaint against the supervisor. In response to the complaint, Securitas conducted an investigation and interviewed the employee, who was the only witness to the incident. During that interview, Securitas' human resource manager instructed the employee not to discuss the alleged argument or Securitas' investigation with anyone.

After the interview, the employee emailed Securitas' human resources manager specific questions about the confidentiality instruction. In response, the human resources manager explained that all employees were “barred from talking during the time of the investigation in any circumstances” and that “[a]fter the investigation is concluded—if any one starts conversing about it and those conversations become a distraction to the workplace anyone involved in conversing could face disciplinary action in accordance with the handbook.”

The employee then filed a complaint alleging that Securitas' confidentiality requirement violated the NLRA. The administrative law judge concluded that Securitas had violated the NLRA because it had not shown that it had a particularized legitimate and substantial business justification for its decision to restrict employees' discussions of the incident and investigation.

Relying on its reasoning in Apogee Retail LLC, the NLRB disagreed, explaining that investigative confidentiality rules regarding open investigations are lawful because the justifications associated with such rules “outweigh their potential adverse impact on employees' exercise of their protected rights” under the NLRA. The NLRB found that Securitas' confidentiality instruction to the employee, which was limited to the time of the investigation, did not violate the NLRA, as it was exactly the type of rule found categorically lawful in Apogee Retail LLC. The NLRB also noted that post-investigation discussions of an investigation, while not banned, can lawfully remain subject to an employer's work rules prohibiting “disruptive, inappropriate or abusive” conduct.

What This Means for Employers

Both Apogee Retail LLC and Securitas should reassure employers that they can implement confidentiality rules for open investigations. Such confidentiality instructions are typically given during internal investigations in order to encourage employees to come forward with complaints and to limit interference with such investigations. However, as stated in Apogee Retail LLC, while employers can prohibit employees from disclosing information they learned or provided in the course of an investigation, the NLRA may limit an employer's ability to require confidentiality after the investigation is concluded. As such, employers should exercise caution when drafting and implementing confidentiality protocols.

Originally published 6 June, 2020

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