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NLRB Reverses Course on Confidentiality in Workplace Investigations

In 2015, the National Labor Relations Board (NLRB) ruled that an employer’s imposition of confidentiality during a workplace investigation was presumed unlawful. To overcome this presumption, an employer would have to show that confidentiality was required by a legitimate and substantial business justification to override the employees’ rights under the National Labor Relations Act to discuss the terms and conditions of their employment.
In December 2019, the NLRB has reversed its earlier decision, now holding that employer rules regarding confidentiality during workplace investigations are presumptively lawful. In the case before it, the employer enacted confidentiality rules to encourage reluctant employees to report misconduct as well as to discourage employees from leaking investigative information to potential wrongdoers and to avoid coordinating their responses to the interview questions ahead of time. The employer had put forth an example of an employee that had resigned rather than face retaliation where the employer could not promise confidentiality. According to the NLRB, the rules about confidentiality must be limited to the duration of the investigation to be presumptively lawful. Where the rule exceeds the time of the investigation, it must be reviewed on a case-by-case basis and an employer would then have to provide legitimate business justifications for confidentiality to continue. The NLRB found that the 2015 ruling was inconsistent with federal guidance from the EEOC and OSHA on investigations. According to the board, EEOC guidelines explain that “[a]n employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible.” Under the 2015 holding, those assurances could not be given because business interests had to be balanced first.