By: Claudia Viera
The National Labor Relations Board (“NLRB”) recently determined that employer confidentiality policies which apply to “open workplace investigations” of employment claims (such as theft, and presumably harassment, discrimination and retaliation) are valid. In most circumstances, this allows workplace investigators to utilize standard confidentiality admonitions during the course of an open investigation when employers have such facially neutral confidentiality policies.
In its December 2019 decision in Apogee Retail [1], the NLRB indicated that, “investigative confidentiality rules similar to those at issue here but that by their terms apply only to open investigations are categorically lawful.” Confidentiality rules which are not limited on their face to open investigations still require individualized scrutiny. This decision implies that the policy language in Apogee Retail would likely be upheld, if it were limited to open investigations, as follows: “Reporting persons and those who are interviewed are expected to maintain confidentiality regarding these investigations during the time the investigation is ongoing.” In addition, the decision implies that an Apogee Retail policy prohibiting employees from discussing the details of their interviews or the investigation with work colleagues would likely be found lawful if limited to the open investigation timeframe. The Apogee Retail case has been remanded for further consideration, so a final determination on company policies is forthcoming.
The Apogee Retail decision overruled earlier NLRB precedent set in Banner[2] which required confidentiality rules in workplace investigations to be judged on a case-by-case basis. Instead, the NLRB determined that the proper standard for workplace investigation confidentiality rules was the Boeing case.[3]
View the full Apogee Retail decision.
For further analysis, click here.
*Disclaimer: Nothing in this post should be construed as legal advice or opinion. Please consult your organization’s employment attorney for questions regarding specific policy language.