Late in 2019, the National Labor Relations Board (NLRB) conferred an early Christmas gift on employers by overruling the NLRB’s precedent concerning investigative confidentiality. The NLRB’s new position on this issue should make it easier for employers and investigators to 1) unearth relevant facts while preserving the integrity of an investigation, 2) prevent employees from influencing each other’s version of events, and 3) preserve confidentiality and privacy for those involved during the investigation.
On December 16, 2019, in a case titled Apogee Retail LLC, three of the four members of the NLRB overruled the NLRB’s prior approach to investigative confidentiality, set forth in its 2015 Banner Estrella Medical Center decision. Banner required employers to make a case-by-case determination of whether confidentiality can be required in a specific investigation following a balancing of the employer’s and employees’ competing interests. In effect, Banner meant that employers and investigators could request that employees treat investigations and interviews as confidential but could not require employees to do so without risking running afoul of employees’ NLRA Section 7 right to communicate with one another regarding the terms and conditions of their employment. In Apogee, the NLRB decided that it was lawful for an employer to require confidentiality from employees during an open investigation. The NLRB remanded the case for further determination of whether the respondent also has legitimate reasons to require confidentiality after an investigation is completed.
The NLRB emphasized in Apogee that the NLRB is responsible for balancing employer and employee interests in assessing the lawfulness of investigative confidentiality rules, noting that Banner inappropriately shifted this burden to employers. The NLRB then concluded that employers have an important need for confidentiality to: 1) ensure the integrity of the investigation, 2) obtain and preserve evidence while employees’ recollection of relevant events is fresh, 3) encourage prompt reporting of workplace concerns without fear of retaliation, and 4) protect employees’ sensitive information. The NLRB noted that the integrity of any investigation depends on the investigator’s ability to prevent matters discussed during an interview from being disclosed outside the interview while the investigation remains open. This is to ensure that potential witnesses do not coordinate their accounts of relevant events, cause other witnesses to doubt their own recollection, or cause witnesses to confuse what they think they remember with what they heard others say.
The NLRB also observed in Apogee that if employers can do more to guarantee confidentiality during an investigation, employee witnesses may be less concerned about retaliation from other employees. Additionally, in response to pressure to talk about the investigation, employee witnesses will be able to tell other employees that the witnesses cannot share information about the investigation because the witnesses could be fired for doing so.
In holding that employers can implement investigative confidentiality rules during an open investigation without violating the NLRA, the NLRB’s rule now appears more consistent with the recommendations of the Equal Employment Opportunity Commission (EEOC) regarding responding to reported sexual harassment. The EEOC advises that “[a]n employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible.”
Workplace investigators will welcome the NLRB’s reversal of Banner and new approach to confidentiality during ongoing investigations. The investigator’s role is to uncover the facts; an enhanced ability to preserve confidentiality during an open investigation should help to protect the integrity of the investigation and the reliability of the findings. However, workplace investigators are mindful that instructing employees not to talk about an open investigation does not guarantee that employees will not do so, even at risk of termination. For this reason, workplace investigators employ various strategies to preserve the integrity of the investigation, such as carefully timing certain interviews or phases of the investigation and utilizing independent evidence to assess the credibility or plausibility of witness reports.
Additionally, even with the benefit of the NLRB’s new Apogee decision, workplace investigators will take care not to provide unrealistic assurances of confidentiality to participants in investigations. It is not always possible to protect the identity of complainants or certain witnesses when asking other witnesses or respondents about events; the context of the incidents may reveal the identities of those involved even when names of witnesses are not specifically disclosed. For employers, reminders to respondents and others about the consequences of violating the employer’s anti-retaliation policies may be a more effective deterrent of retaliatory conduct than assurances of confidentiality. Ultimately, even witnesses with reasonable concerns about retaliation are more likely to be candid when they have confidence and trust in the investigator and in the employer’s genuine commitment to uncover the facts.
The dissenting NLRB member in Apogee raised a legitimate concern that unscrupulous employers could use the NLRB’s approval of confidentiality rules to gag complaining employees rather than investigate the facts related to a complaint. For example, imagine that a company receives a sexual harassment complaint from a low-level employee about a high-level employee. An HR employee holds an intake meeting with the complaining employee, instructs the employee not to speak to anybody else about the complaint, and alerts the employee to the company’s confidentiality rules. The employee never hears back about her complaint and is too afraid to talk about it with anybody else. In the meantime, the company fails to investigate the complaint and the high-level employee does not change his harassing behavior. In this hypothetical scenario, a confidentiality rule is manipulated to cloak the employer’s inaction, shield a wrongdoer from accountability, and prevent employees from taking action to protect themselves or seek legal protection. With the current onslaught of #MeToo allegations, one hopes that employers recognize the shortsightedness of such an approach.
In a nutshell: Employers and workplace investigators should be aware that the NLRB now endorses the use of confidentiality rules in open investigations. In employing confidentiality rules during investigations, skilled investigators now have an enhanced tool, along with other strategies, to bring important facts to light and to assist the employer in protecting employees from potential wrongdoing.
