NLRB Decision Allows for Confidentiality Rules for Ongoing Internal Investigation

In a December 17, 2019 decision announced for Apogee Retail LLC, d/b/a Unique Thrift Store and Kathy Johnson, the National Labor Relations Board (NLRB) explicitly stated that employers may enact rules that require employees to maintain confidentiality while there is an ongoing internal investigation into employee misconduct. The Board reasoned that employers have a legitimate interest in ensuring the integrity of internal investigations to protect both itself and its employees throughout the process. However, the Board went on to say that rules requiring blanket confidentiality once the investigation has been completed are subject to review. To require continued confidentiality after the conclusion of the investigation, employers must justify why the continued confidentiality is necessary and demonstrate that those justifications outweigh the employee’s exercise of their rights under Section 7 of the National Labor Relations Act (NLRA).

This decision overrules the Board’s decision in Banner Estrella Medical Center, which required employers to engage in a determination as to whether or not confidentiality was appropriate under the particular facts and circumstances of any given investigation. The Board found that the Banner ruling departed from its role of balancing employee and employer rights and instead hindered employers’ ability to act quickly in gathering relevant facts and carrying out an investigation.

For employers, the takeaway from this decision is that rules that require confidentiality during an ongoing investigation into employee misconduct are permissible under the NLRA. But employers should be careful about requiring continued confidentiality unless there is a legitimate, substantial justification for holding employees to that requirement.