NLRB Reverses Prior Decision: Employers Can – as a General Matter – Require Confidentiality by Investigation Participants During Ongoing Investigations
With the holidays fast approaching, you may have missed a mid-December NLRB decision impacting workplace investigations. In Apogee Retail, the NLRB ruled that employers may generally enforce policies seeking to keep investigations confidential during an ongoing investigation. Previously, in its Banner Estrella decision, the NLRB had ruled that employers must, on a case-by-case basis, weigh the need for such confidentiality against the impact on employee rights under the National Labor Relations Act. This shift is important to understand as the NLRB is now permitting a more-standardized approach to requiring confidentiality (and thus will permit policies requiring it to be included in codes of conduct).
With that said, it’s important that the decision not be taken as stating more than it does. The NLRB made clear that employers could not restrict non-participants in the investigation to discuss the underlying events or conduct at issue. (“[O]ur holding does not extend to rules that would apply to nonparticipants, or that would prohibit employees—participants and nonparticipants alike—from discussing the event or events giving rise to an investigation (provided that participants do not disclose information they either learned or
provided in the course of the investigation.” emphasis in original). Also, critically, the decision repeatedly defines the relevant issue and restrictions as relating to confidentiality “during an ongoing investigation,” and finds that the case-by-case analysis would still apply where an employer sought to extend confidentiality beyond the end of the investigation. For the full decision, see https://apps.nlrb.gov/link/document.aspx/09031d4582ec1a7d.