By Daniel Kornberg
The National Labor Relations Board (the “Board”) recently reviewed the rights of an employer to have blanket rules requiring confidentiality of internal employee investigations.[i] Specifically, the Board examined an employer’s right to have two types of work rules: 1) rules that require employees to keep internal employee misconduct investigations confidential during the investigative process; and 2) rules that impose disciplinary sanctions on those employees that violate the confidentiality workplace rules.[ii] In its review, the Board revisited their prior 2015 ruling[iii] regarding how to balance workplace confidentiality rules against that of an employee’s section seven rights of the National Labor Relations Act (the “NLRA”).[iv] The Board overturned its prior 2015 ruling and determined that confidentiality rules that only apply for the duration of an internal employee investigation do not interfere with employees’ section seven rights.[v] The Board further held that employers could sanction employees who were found to have violated the blanket confidentiality work place rules.[vi]
In a 2015 decision, the Board held that blanket workplace rules requiring employees to keep every internal employee misconduct investigation confidential were direct violations of an employee’s section seven rights.[vii] According to the Board at the time, those types of blanket confidentiality work rules infringed upon an employee’s right to engage in protected concerted activity.[viii] Specifically, the blanket rules were “ unduly restricting employees from speaking about their terms and conditions of work” with their co-workers by requiring every instance of an investigation to be confidential.[ix] The Board chose to ignore the employer’s argument that according to published investigation guidelines from the United States Equal Employment Opportunity Commission (the “EEOC”), employers were suggested to have blanket confidentiality rules for employee harassment and discrimination investigations.[x] Instead, the Board held that blanket confidentiality rules were not acceptable and that employers would have to evaluate on a case-by-case basis if the circumstances of an internal employee investigation justified the entire investigation to be confidential.[xi]
In Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson, the Board overturned its prior 2015 ruling regarding blanket workplace confidentiality rules. In its decision, the Board once again reviewed the legality of an employer having work rules that required confidentiality during and after every internal employee investigation.[xii] However, this time the Board reviewed the workplace rules under the lens of the 2017 Boeing Co.[xiii] ruling which established three separate categories of workplace rules and the levels of scrutiny attached to each category.[xiv] The Board reviewed the blanket confidentiality workplace rules under the facially neutral Boeing category.[xv] Under that category, an employer need only demonstrate that there exists a rational basis for the implementation of a set of workplace rules.[xvi] The burden of persuasion for that category of rules rests upon the impacted employee to demonstrate there existed a discriminatory animus against an employee or union at the time of implementation.[xvii]
The majority of the Board felt that the confidentiality workplace rules “did not interfere with employees’ section seven rights” on the face of the rules since the rules were constructed to “maintain the integrity” of internal employee misconduct investigations.[xviii] The majority further found the employer’s argument that the confidentiality rules were necessary to allow for the protection of its employees and managers as reasonable in nature.[xix] The lack of confidentiality during an internal employee misconduct investigation brought concern to the Board since the lack of confidentiality assurances “hinders the ability of the employer to act quickly and decisively.”[xx] Specifically, the majority of the Board pointed out that employee witnesses could “fear for their safety if their statements are made public” and employees might as a result, reasonably choose not to cooperate in the internal investigative process.[xxi]
Overall,
the Apogee Retail Board ruling can be viewed as win for both employers
and unionized employees in the efforts to gain a safer work environment. Employers
will not have to worry about creating blanket confidentiality rules that violate
the NLRA while employees might be more likely to come forward with workplace
complaints and participate in internal investigations after the ruling.
[i] Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson, 27-CA-191574, NLRB (2019).
[ii] Id.
[iii] Banner Estrella Medical Center, 362 NLRB 1108 (2015), enf. denied on other grounds 851 F.3d 35 (D.C. Cir. 2017).
[iv] Apogee Retail LLC, 27-CA-191574, NLRB (2019).
[v] Id.
[vi] Id.
[vii] Banner, 362 NLRB 1108 (2015).
[viii] Id.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Apogee Retail LLC, 27-CA-191574, NLRB (2019).
[xiii] Boeing Co., 365 NLRB No. 154 (2017).
[xiv] Apogee Retail LLC, 27-CA-191574, NLRB (2019).
[xv] Id.
[xvi] Boeing, 365 NLRB No. 154 (2017).
[xvii] Id.
[xviii] Apogee Retail LLC, 27-CA-191574, NLRB (2019).
[xix] Id.
[xx] Id.
[xxi] Id.
