NLRB Shifts View of Confidentiality Mandates in Workplace Investigations

But caution is still the order of the day when employee investigations and unions are at issue

New precedent has been set in a case over a retail chain’s handling of workplace investigations. The decision, by the National Labor Relations Board (NLRB) on Dec. 17, 2019, makes it presumptively lawful for employers to mandate confidentiality during workplace investigations (Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144, Dec. 2019). According to the NLRB’s announcement of the decision, “In today’s decision, the Board determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful.”

At issue was whether it was lawful for Apogee Retail to maintain two written rules, one requiring employees to “maintain confidentiality” regarding workplace investigations into “illegal or unethical behavior” and the other prohibiting “unauthorized discussion” of investigations or interviews “with other team members.”

The 2-1 NLRB decision overturned a 2015 Obama-era decision (Banner Estrella), which had placed a burden on employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality. In that case, the NLRB concluded that an employer’s form—stipulating interviewees not to discuss the matter with coworkers—violated employees’ Section 7 rights under the National Labor Relations Act. Section 7 guarantees employees the right to self-organize, join labor organizations, and to bargain collectively.

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“The Board concluded that the framework set forth in Banner Estrella improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent,” said the NLRB announcement. The new standard better aligns with other federal guidance, including EEOC enforcement guidance, the NLRB added.

What does this mean for employers?
“The new NLRB standard makes clear that an employer may properly require witnesses, the accuser, and the accused to maintain the confidentiality of investigative information during workplace investigations,” explained attorneys at Kramer Levin in an alert to clients, “The NLRB Permits Employers to Impose Confidentiality Requirements in Ongoing Workplace Investigations,” Dec. 23, 2019. “However, even with this new standard, employers are cautioned not to guarantee complete confidentiality during the investigative process, as they may, for instance, be required to disclose information learned during the course of the investigation in furtherance of their duties to conduct a thorough investigation and to take appropriate remedial action. Employers can commit to keeping the information as confidential as practical in light of these obligations.”

While the decision marks a shift in favor of employers, it remains important for retailers to be cautious with respect to unionizing activities. Some rulings remain in place that show the NLRB’s willingness to target policies and practices that could be construed as restricting an employee’s rights under the Act.

For example, the US Court of Appeals for the District of Columbia upheld a NLRB decision in 2016 against an employer that had posted a memo on an employee bulletin board—accompanied by its Workplace Violence Prevention Policy—after a vote to unionize narrowly failed. “Now that the NLRB election is behind us, I was hoping that everyone would put their differences behind them and pull together as a united team,” read the memo, adding that some team members had been threatened and harassed during the contentious election process. The NLRB ruled, however, that the employer did not demonstrate evidence of threat or intimidation, so it was reasonable for employees to construe that the posting of the policy prohibited unionizing activities (Care One at Madison Avenue, Cases 22–CA–085127 and 22–CA–08933).

The above ruling shows that the NLRB is willing to strictly scrutinize workplace communications and suggests employers should be prepared to demonstrate evidence to support any claims made in communications with respect to union election campaigns. “An employer must refrain from interfering with or discouraging the exercise of protected labor rights by either granting or withholding a benefit. Whether interference is accomplished by dangling a carrot or brandishing a stick, the Supreme Court has long counseled that it is interference all the same,” noted the DC Appeals Court ruling in support the NLRB’s enforcement order.

Tread lightly when investigating employees
A separate NLRB decision similarly suggests that it’s wise to tread lightly when investigating employees. In it, an employer confirmed its suspicions that employees were using an unofficial break room to skirt duties and do drugs by setting up video surveillance. But the employees’ union successfully challenged the employer in a suit with the NLRB because the company hadn’t negotiated use of cameras with them, which the company claimed was unnecessary because they were trying to ensure plant safety. “Unions have the right to negotiate over a broad range of issues and employers may find their business decisions overturned if they are undertaken without union input,” warned a labor law attorney we interviewed. There may be instances when retail security teams can legally conduct video surveillance without prior consultation with an employee union, but such instances are rare and LP teams should always consult legal counsel before doing so, he added.

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