Investigative Confidentiality Gets the Support of the NLRB:
The National Labor Relations Board (NLRB) has reversed recent past decisions, and has held that an employer can require confidentiality from an individual employee involved in a current internal investigation. However, the NLRB only partly reversed past rulings on the issue, holding that while confidentiality can be required during an ongoing investigation, it may not be appropriate with respect to a past investigation. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (Dec. 17, 2019).
At the basis of that decision is a policy of Apogee Retail LLC that requires employees to cooperate in internal investigations, and to “maintain confidentiality regarding those investigations.” Further, the same company’s list of rule infractions includes “unauthorized discussion of investigation or interview” with other employees.
Previously, the NLRB issued a decision in which it held that employees have a clear right to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers, and that an employer’s restriction of such conversations amount to a per se violation of Section 7 of the National Labor Relations Act (NLRA). Fresh and Easy Neighborhood Market, 361 NLRB 151 (2014). The Board held, however, that an employer’s case-by-case showing of a “legitimate and substantial business justification” of such restriction could outweigh the protections afforded by Section 7. This put the onus squarely on the employer to defend such policies.
Since then, the NLRB consistently has determined that a case-by-case analysis of whether confidentiality can be required regarding a specific investigation must be made by the employer in order to defend itself against a Section 7 violation.
The Application of Facially Neutral Workplace Rules:
However, in 2017, the NLRB issued a decision (not related to investigative confidentiality) in which it set forth the test for applying facially neutral workplace rules so as to assure compliance with the NLRA. In that case, the Board spelled out three categories to assist in that test:
- Category 1 includes rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
- Category 2 includes rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
- Category 3 includes rules that the Board designates as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.
This test initially switches the burden from the employer (to determine the need for the policy on a case-by-case basis) to the NLRB’s General Counsel (to determine whether a specific policy interferes with the exercise of NLRA rights).
The Narrow Nature of the Apogee Decision:
In analyzing Apogee’s confidentiality policy, the Board stated that “[c]onfidentiality assurances during an ongoing investigation play a key role in serving the interests of both employers and employees,” and result in “investigative integrity.” Based on that fact, the Board found that “investigative confidentiality rules are lawful [under the three-category analysis] to the extent they apply to open investigations,” and fall within Category 1 rules. The Board therefore created a blanket allowance of such rules for ongoing investigations.
However, the Board went further, finding that once an investigation has concluded, extending the confidentiality requirement beyond the duration of the investigation may adversely affect an employee’s Section 7 rights. Therefore, a policy that – either directly or by omission – does not include a finite end to the confidentiality directive would fall within Category 2, which then puts the burden back on the employer to justify the policy.
While employers are applauding the Apogee decision, it is important not to overlook the restriction of that holding to ongoing investigations. To the extent that a company’s requirements for investigative confidentiality do not include such a limitation, it is important to document and retain reasons for the extension of confidentiality, should the employer wish it to continue beyond the conclusion of the investigation.