NLRB Approves Greater Confidentiality in Workplace Investigations | Practical Law

NLRB Approves Greater Confidentiality in Workplace Investigations | Practical Law

In Apogee Retail LLC d/b/a Unique Thrift Store, the National Labor Relations Board (NLRB) held that employer rules requiring employees to maintain confidentiality during ongoing workplace investigations are presumptively lawful under the National Labor Relations Act (NLRA).

NLRB Approves Greater Confidentiality in Workplace Investigations

Practical Law Legal Update w-023-4194 (Approx. 5 pages)

NLRB Approves Greater Confidentiality in Workplace Investigations

by Practical Law Labor & Employment
Law stated as of 02 Aug 2023 • USA (National/Federal)
In Apogee Retail LLC d/b/a Unique Thrift Store, the National Labor Relations Board (NLRB) held that employer rules requiring employees to maintain confidentiality during ongoing workplace investigations are presumptively lawful under the National Labor Relations Act (NLRA).
NOTE: See the UPDATE at the end of this resource for subsequent developments affecting this decision.
On December 17, 2019, in Apogee Retail LLC d/b/a Unique Thrift Store, a 3-1 majority of the panel (Board) heading the NLRB's judicial functions:
  • Held that employer rules mandating employee confidentiality for the duration of an ongoing workplace investigation are lawful Category 1 rules under the standard established in Boeing Company because the legitimate and substantial business justifications for these rules outweigh their relatively slight impact on employees' Section 7 rights (365 N.L.R.B. No. 154 (Dec. 14, 2017)).
  • Overruled Banner Estrella Medical Center, which required employers to prove on a case-by-case basis that confidentiality was necessary to preserve the integrity of a workplace investigation and therefore outweighed the adverse impact on employees' Section 7 rights, on the grounds that this decision:
    • contradicted governing US Supreme Court and NLRB precedent;
    • failed to adequately consider the importance of confidentiality assurances to both employers and employees during open investigations; and
    • conflicted with other federal guidelines, including EEOC enforcement guidance.
    (362 N.L.R.B. 1108 (2015), enf. denied on other grounds 851 F.3d 35 (D.C. Cir. 2017); see Legal Update, Employer Violated NLRA by Asking Employees Not to Discuss Ongoing Investigations with Co-Workers: NLRB.)
Member McFerran dissented, arguing that the majority's decision will chill critical employee speech regarding workplace misconduct. (368 N.L.R.B. No. 144 (Dec. 17, 2019).)
With its decision in Apogee Retail, the Board has determined that employer rules requiring employee confidentiality during the course of ongoing workplace investigations are valid under the NLRA as a matter of law. Importantly, however, the Board also held that investigative confidentiality rules not expressly limited to open investigations continue to require individualized scrutiny under the Boeing Category 2 analysis.

UPDATE

On August 2, 2023, a Board majority adopted a new burden-shifting standard for evaluating facial challenges to employer work rules that do not expressly restrict employees' protected concerted activity under Section 7 of the NLRA, overruling Boeing and the subsequent work rules decisions applying the categorical classification system articulated therein (Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023); for more information on this decision, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules).