NLRB RULING PROVIDES GREATER CONFIDENTIALITY IN WORKPLACE INVESTIGATIONS
Another December ruling dealt with workplace investigations, and the issue whether an employer can have work rules requiring confidentiality during the course of such investigations. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144. The Obama-era NLRB issued a decision requiring employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality. Employers often desire to have such confidentiality to preserve the integrity and privacy of such investigations, particularly involving sensitive harassment issues. Indeed, the Equal Employment Opportunity Commission (EEOC) encourages such confidentiality. The EEOC and the NLRB had actually met without success over resolving the issue between privacy rights and workers' rights to discuss job-related issues.
In the more recent ruling, the NLRB applied the test for facially neutral workplace rules established in The Boeing Company, 365 NLRB No. 154 (2017), and determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful. Because the rule at issue did not limit confidentiality to the duration of the investigation, the Board remanded to determine whether the employer has one or more legitimate business justifications for requiring confidentiality even after an investigation is over and, if so, whether its justifications outweigh the effect on employees' exercise of their Section 7 rights. Thus, rules that require employees to keep open workplace investigations private are deemed lawful if limited to the life of the investigation.
In responding to the argument of the importance of workers being able to confer with coworkers, the NLRB said any adverse impact of gag orders on an open investigation is "comparatively slight." The Board stated: "The rules at issue do not broadly prohibit employees from discussing either discipline or incidents that could result in discipline . . . . Rather, it narrowly requires that employees not discuss investigations of such incidents or interviews conducted in the course of an investigation."