The flurry of activity from National Labor Relations Board in late 2019 was a fairly consistent drum beat of good news for employers. In many cases, the Board restored decades of precedent that had been upended by the Board during the Obama administration. Some would say the Board restored order and sanity in the world of labor relations. That is certainly the case with the recent Board decision holding that employers can, in fact, require that employees maintain confidentiality during an internal investigation.
As you may recall, the Obama Board issued a highly controversial decision that essentially prohibited employers from requiring employees to maintain the secrecy of information related to an ongoing investigation. Instead, in Banner Estrella Medical Center, the Obama Board held that whether an employer could enforce such a confidentiality obligation would be determined on a case by case basis, and an employer was required to justify any confidentiality requirement. This approach was a problem for a whole host of reasons, including that it contradicted guidance from the Equal Employment Opportunity Commission, jeopardized the integrity of workplace investigations (including harassment investigations) and increased the risk of retaliation. Employers struggled with the confounding contradictions presented by the decision.
Enter the Trump Board. On December 16, 2019, the Board overturned Banner Estrella Medical Center, and its case-by-case analysis requirement. In Apogee Retail, the Board held that confidentiality policies, like all workplace policies, should be evaluated in accordance with the Board’s policy rubric announced in Boeing Co. The Board went on to provide bright line, clear guidance to employers by holding that “investigative confidentiality rules are lawful and fall within Boeing Category 1—types of rules that are lawful to maintain—where, by their terms, the rules apply for the duration of any investigation.” In other words, a confidentiality obligation that lasts only during the term of the investigation is lawful.
The Board also held that where confidentiality rules extend beyond the duration of the investigation, the rules would be considered Category 2 rules under Boeing. As such, a determination of their legality requires determination as to whether the employer “has one or more legitimate justifications for requiring confidentiality even after an investigation is over, and if so, whether those justifications outweigh the effect of requiring post-investigation confidentiality on employees’ exercise of their rights under Section 7 of the National Labor Relations Act.” The Board remanded the Apogee Retail case for further proceedings on this issue.
We are hopeful that following remand, the employer is able to successfully assert that retaliation and other concerns are sufficient justifications to require post-investigation confidentiality. We are also hopeful for more clear guidance from the Board on this issue.
In the meantime, employers now have some clarity regarding confidentiality requirements tied to workplace investigations. To the extent that such requirements last only through the duration of the investigation, such policies/rules are lawful. If there is a justification to require confidentiality to remain in place beyond the duration of the investigation, then the rule may also be lawful. While there does remain some uncertainty with respect to rules that last beyond the term of an investigation, there is also now some much needed clarity for employers.
If you have any questions as you modify your policies in light of Apogee Retail, please contact any member of our Labor & Employment Group.