The National Labor Relations Board (NLRB) continues to relax restrictions on rules requiring confidentiality of ongoing workplace investigations. Securitas Security Services USA, 369 NLRB No. 57 (Apr. 14, 2020).
Section 7 of the National Labor Relations Act (NLRA) protects employees’ rights to discuss workplace issues. This protection includes employee discussion of discipline, discrimination, harassment, and many other topics that are properly the subjects of workplace investigations that employers want to be kept confidential for obvious reasons.
In 2015, the NLRB issued a decision severely limiting work rules that mandate confidentiality of ongoing workplace investigations. In Banner Estrella Medical Center, 362 NLRB 1108, the NLRB held that investigation confidentiality rules would be lawful only if the employer could show a particularized legitimate, substantial business justification that outweighed employee Section 7 rights. Meeting this subjective standard proved difficult for employers.
The current NLRB has relaxed this strict standard. Overruling Banner Estrella Medical Center, the NLRB has held that investigative confidentiality rules are lawful Category 1 rules under The Boeing Company, 365 NLRB No. 154 (2017), where, by their terms, the rules apply for the duration of any investigation. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019).
In Apogee Retail, the NLRB also provided that, where a rule does not, on its face, apply for the duration of any investigation, a determination is made whether one or more legitimate justifications exist for requiring confidentiality even after an investigation is over. If legitimate justifications exist, a determination is made whether those justifications outweigh the effect of requiring post-investigation confidentiality in employees’ exercise of their Section 7 rights.
The NLRB applied Apogee Retail in Securitas Security Services USA. The employer was charged with violating the NLRA by directing an individual employee to not discuss an internal investigation. Based on all of the facts, the NLRB decided that restriction was only for the duration of the investigation. The NLRB relied upon emails between the employee and a human resources manager, one of which said that “employees are barred from talking during the time of the investigation in any circumstance.”
Securitas and Apogee do have limitations that employers should understand. As noted in Securitas, employees still have Section 7 rights to discuss workplace issues that may be relevant to an investigation, and even the events at issue in the investigation. However, they may be restricted from discussing information they learned or provided during the course of the investigation.
