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The National Labor Relations Board (“NLRB”) ruled that an employer
may now require confidentiality from employees involved in open workplace
investigations. This resolves a conflict between the NLRB and
the Equal Employment Opportunity Commission (“EEOC”) and provides clarity for
employers.
In 2015, the NLRB reversed precedent and held that employers must
determine whether imposing confidentiality during any particular workplace
investigation infringed on employee’s rights under the National Labor Relations
Act (“NLRA”) on a case-by-case basis. In contrast, the EEOC recommended blanket
confidentiality rules during workplace investigations. This put employers in
the position of choosing which guidance to follow.
Now, the NLRB found that investigative confidentiality rules which
are limited to the duration of the investigation do not require engaging in a
case-by-case balancing of employer versus employee interest. The NLRB found that confidentiality rules do
not broadly prohibit employees from discussing discipline or incidents which
could result in discipline. Instead, they narrowly require that participating
employees not discuss investigations of incidents or interviews conducted
during the course of the investigation. However, if a confidentiality rule
regarding investigations is not specifically limited to the duration of the
investigation, then the NLRB requires a case-by-case balancing of employer and
employee interests.
Employers should review their handbooks and other employment
policies regarding workplace investigations. The NLRB is clear that
confidentiality during investigations will only be presumptively lawful during
an open investigation. Moreover,
employer policies may only require confidentiality from participants in the
investigation and may not prohibit all employees from discussing the incidents
upon which the investigation is based.