SBJ Scores Big Victory before NLRB: Employers May Require Confidentiality of Ongoing Workplace Investigations
Sebris Busto James achieved a big win when SBJ Shareholder Matt Lynch convinced the National Labor Relations Board to overrule precedent and hold that an employer may require employees to maintain the confidentiality of ongoing workplace investigations.
In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (12/16/2019), the full Board, on a 3-2 vote, concluded that the SBJ client did not violate Section 8(a)(1) of the National Labor Relations Act by maintaining two written rules requiring employees to maintain confidentiality and prohibiting unauthorized discussions regarding workplace investigations into illegal or unethical conduct. The majority overruled the Board’s former approach to investigative confidentiality rules as set forth in Banner Estrella Medical Center, 362 NLRB 1108 (2015), requiring an employer to make a case-by-case determination of whether confidentiality can be required in a specific investigation. Instead, the Board applied the test for facially neutral workplace rules established in The Boeing Co., 365 NLRB No. 154 (2017), and found such confidentiality rules generally to be lawful. The client and NLRB General Counsel had argued, and the Board agreed, that the Banner Estrella approach improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed presumptive employee Section 7 rights, contrary to both Supreme Court and Board precedent. In addition, the Board’s prior test failed to consider the importance of other federal guidance, including EEOC regulations requiring an employer to provide confidentiality assurances during discrimination investigations. The Board limited its holding to ongoing investigations. The case was remanded the case to NLRB Region 27 for further consideration in light of the Board’s ruling.
Assisting Matt in this case was SBJ Associate Matthew Kelly.