Labor & Employment
By Kristina E. Curry Labor & Employment Section, Pickrel Schaeffer & Ebeling, Co., LPA
Legal Updates on Employer Confidentiality Rules During Workplace Investigations: Protecting Employees AND Employers O
n December 16, 2019, the National Labor Relations Board (“NLRB”), in Apogee Retail LLC d/b/a Unique Thrift Store (“Apogee”), held that employer rules that require employees to maintain confidentiality during investigations of employee misconduct are lawful under the National Labor Relations Act, (“NLRA”). The Board overruled its holding in Banner Estrella Medical Center (2015), which required a case-by-case determination of whether employers could mandate confidentiality during workplace investigations. The Banner standard required employers to show specific evidence that witnesses in an investigation required protection, that evidence was in danger of being destroyed, or that testimony was actually in danger of being fabricated. While the Banner test had sought to protect the rights of employees to discuss the terms and conditions of their employment, the Apogee standard recognizes both the need to protect employees from undue influence during an investigation, as well as the employer’s interest in conducting a fair investigation that leads to the disclosure of all facts and circumstances. The Board stated, “Confidentiality assurances during an ongoing investigation play a key role in serving both the interests of employers and employees.” In Apogee, the Board rejected the Banner test as having “abandoned its obligation to balance employee and employer interests” by shifting the burden on the employer to prove that its own interest in a particular investigation outweighed the interests of employees’ 14
Dayton Bar Briefs February 2020
interests as it pertained to Section 7 rights. Instead, the Board in Apogee applied the standards it set forth in Boeing Company (2017). In Boeing, the Board overturned prior rulings holding employer work rules must be analyzed in light of whether a worker would interpret a rule as restricting NLRA Section 7 provisions guaranteeing to workers “the right….to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Boeing held that work rules that require employees to keep ongoing investigation matters confidential do not interfere with employee’s right to engage in concerted activity when balanced against employer’s compelling business justifications. Applying the Boeing analysis, Apogee held employers may lawfully establish work rules that require employees to refrain from discussing matters or revealing information pertaining to any investigation of employee misconduct while the investigation is open and ongoing. The Board set forth the most compelling reasons underlying an employer’s need for confidentiality during an ongoing investigation: (1) to ensure the integrity of the investigation, (2) to obtain and preserve evidence while employees’ recollection of relevant events is fresh, (3) to encourage prompt reporting of a range of potential workplace issues—unsafe conditions or practices, bullying, sexual harassment, harassment based on race or religion or national origin, criminal misconduct, and so forth—without employee fear of retaliation,
and (4) to protect employees from dissemination of their sensitive personal information. The Board concluded that these interests could not be served under Banner, because employers were required to disclose to employees that it could not guarantee confidentiality. This requirement itself might have been “enough to chill employees into silence.” Furthermore, “without an investigative confidentiality rule, employees would have no defense against pressure—potentially intense pressure, even threats—from other employees to reveal what was asked and said. An investigative confidentiality rule gives employees a plausible defense against such pressure: “Sorry. I can’t talk about it. If I did, I’d get fired!” In addition to providing employees with a defense against pressure to reveal what they know about an investigation to others, even potentially to the person that the employee has lodged a complaint against, the Board acknowledged that investigations often reveal other sensitive employee information, such as allegations of substance abuse, improper computer and internet usage, allegations of theft, violence, sabotage, or embezzlement. Employers should make clear to all employees that it will not only protect the employee’s confidentiality in having made an allegation against another employee but will enforce confidentiality rules throughout an investigation. This is particularly important during employer investigations of sexual harassment, discrimination complaints and reports of safety violations in the workplace.
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