NLRB Decision Permits Confidentiality Directives in Workplace Investigations

The National Labor Relations Board (the “NLRB”) published an opinion that reversed earlier precedent and held that confidentiality provisions during workplace investigations are presumptively lawful.  This holding represents a significant shift from the employee-favored precedent established in prior NLRB decisions.

Until the recent NLRB Board decision of Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson (“Apogee”), the NLRB, like the Public Employment Relations Board, routinely held that no-contact directives interfered with an employee’s right to speak with his or her colleagues about working conditions.   (Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson (Dec. 2019) Cases 27-CA-191574 and 27-CA-198058.)

Prior to Apogee, the controlling authority for the NLRB was the case of Banner Estrella Medical Center, which held that an employer could not restrict employees from discussing ongoing workplace investigations with other employees, unless the employer had a legitimate and substantial business justification that outweighed the employee’s Section 7 rights.  (Banner Estrella Medical Center (2015) 362 NLRB 1108, 1109.)  The Banner Estrella Board found that an employer must supply specific evidence that “in any given investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up.” (Banner Estrella, 362 NLRB at 1109; citing Hyundai America Shipping Agency (2011) 357 NLRB 860.)  The Banner Estrella Board held that the employer could only require confidentiality after the employee presented a particularized showing that corruption of the investigation was likely to occur. (Banner Estrella, 362 NLRB at 1109.)

However, with the decision of Apogee, the NLRB now takes the position that employer confidentiality provisions during workplace investigations are presumptively lawful. (Apogee, 27-CA-191574, p. 2; National Labor Relations Board, Board Approves Greater Confidentiality in Workplace Investigations (Dec. 17, 2019), https://www.nlrb.gov/news-outreach/news-story/board-approves-greater-confidentiality-workplace-investigations.)

The Board held that investigative confidentiality promotes the goals of antidiscrimination statutes by helping employers eradicate workplace discrimination and deal with it promptly and effectively when it occurs.  “And this, in turn, also furthers the employees’ collective interest in having a discrimination-free workplace.”  (Apogee, 27-CA-191574, p. 5.)  The Board also noted that this position is better aligned with federal guidance on workplace procedures, including enforcement guidance from both the Equal Employment Opportunity Commission and the Occupational Safety and Health Administration.  (Id.)

While the NLRB has historically given deference to employees in cases alleging employer interference, the recent Apogee decision shifts the balance towards employers in matters involving workplace investigations.

As a practical note, employers wishing to utilize no-contact directives during workplace investigations should ensure that such directives are facially neutral and limit communication only for the duration of the investigations.  Should you wish to speak with an attorney about the use of no-contact directives, please feel free to contact our office.

 

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