The Comeback of the Confidentiality Admonition
They are back! Just in time for the holidays, the National Labor Relations Board (NLRB) gave employers a reason to celebrate the season. Earlier this month, the NLRB voted to allow employers to issue confidentiality admonitions during the pendency of a workplace investigation, or depending on the facts of the case, even after the investigation concludes.
As workplace investigators, we were – prior to 2015 – accustomed to admonishing all witnesses about confidentiality of the investigative process. This was done in an effort to prohibit (or at least minimize) the likelihood that employees were discussing private employee matters. Other positive consequences included reducing the potential for retaliation, avoiding workplace disruption, minimizing the likelihood of influencing employees’ statements, or otherwise compromising the integrity of the investigation.
That changed in 2015, however, in NLRB’s controversial decision in Banner Estrella Medical Center, 362 NLRB 1108 (2015). In that decision, the NLRB prohibited blanket confidentiality admonitions. But the NLRB’s recent decision has paved the way for a resurgence in the confidentiality admonition.
Stepping back, in Banner, the NLRB invalidated blanket confidentiality admonitions for non-supervisory employees1. The Board determined an employer could only lawfully treat an investigation as confidential if the employer could demonstrate at least one of the following: (1) the need to protect witnesses; (2) a likelihood that evidence may otherwise be destroyed; (3) the threat that subsequent testimony would be fabricated; or, (4) the need to prevent a cover-up. However, the Board offered little substantive guidance as to what would be required to satisfy the standards, and ultimately, employers were advised to proceed with an enormity of caution before administering confidentiality admonitions.
Now, with NLRB’s recent decision in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), Banner is overturned. The Board determined Banner improperly placed an “unduly onerous burden of proof” on employers by requiring case-by-case examinations of the necessity for confidentiality. The Board asserted employers’ need for confidentiality in investigations was “obvious.”
In Apogee, the Board held work rules requiring confidentiality in investigations must be analyzed under a balancing test established in a previous case, The Boeing Co., 365 NLRB No. 154 (2017). The Board determined confidentiality admonitions which last for the duration of an investigation fall into the category of rules which are lawful, noting the employer’s justification for the rules outweighed the effect on employees’ rights. The Board noted that confidentiality rules which extend past the length of the investigation fall into the second category of rules described in Boeing, and would require a case-by-case balancing of employer and employee interests.
So, what does this mean for employers and workplace investigators? For public California employers, the decision has little impact. Why? Because the California Public Employment Relations Board (PERB) determined in its own decision from 2014 that blanket confidentiality admonitions violate employee rights. For private employers, the NLRB decision makes clear that employer policies regarding confidentiality during investigations will be presumptively lawful for the duration of an investigation. Additionally, employer policies must limit the confidentiality rules to participants of the investigation. Given the decision, employers should review their handbooks and policies related to workplace investigations to determine whether confidentiality components should be updated, changed, or modified. In-house and external investigators should work with employers and thoroughly consider confidentiality admonitions as part of their investigative strategy and planning.
Lauren Becker is an Associate Attorney with Van Dermyden Maddux Law Corporation. Her practice focuses on conducting workplace and Title IX campus investigations.
The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.
1 Although the decision impacted investigations involving employees, the import of the decision did not extend to supervisors and managerial employees. Because the National Labor Relations Act does not protect the rights of management or supervisory employees, nothing in the NLRB’s decision precluded employers from maintaining a general rule requiring those employees to maintain confidentiality during an internal investigation.