NLRB Reverses Course on Legality of Investigation Gag Orders

Clifford Geiger
Clifford Geiger

Employers have a legitimate interest in investigating allegations of employee misconduct.  It seems obvious that a certain amount of confidentiality is required to maintain the integrity of those workplace investigations.  Otherwise, investigations may be hindered.  Parties may be coached or discuss ahead of time what they will say, accusers may openly discuss complaints and try to influence others to provide corroboration, employees may fear the release of personal information, or employees may have greater fear of retaliation.

In Banner Health System, 362 NLRB 1108 (2015), the National Labor Relations Board (the “Board”) addressed whether an employer may lawfully instruct employees not to discuss ongoing workplace investigations with one another.  The Board found such instructions constituted an unfair labor practice because they interfered with an employee’s exercise of rights guaranteed by Section 7 of the National Labor Relations Act (the “Act”).

The Board observed:

Employees have a Section 7 right to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers.  . . . Accordingly, an employer may restrict those discussions only where the employer shows that it has a legitimate and substantial business justification that outweighs employees’ Section 7 rights.

Therefore, the burden was on the employer to determine, on a case-by-case basis, whether its interests in preserving the integrity of an investigation outweighed presumptive employee Section 7 rights.  An employer was required to supply specific evidence that in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, and there was a need to prevent a cover up.  Only after an employer presented a particularized showing that corruption of the investigation was likely to occur could the employer lawfully require employee confidentiality even during an investigation.

In Apogee Retail LLC, 368 NLRB 144 (2019), the Republican-majority Board overruled the Obama-era  Banner Health Care.  The Board held that investigative confidentiality rules are lawful where by their terms the rules apply for the duration of any workplace investigation. This is consistent with the position taken by the EEOC, which endorses requiring confidentiality during investigations and encourages employers to adopt confidentiality rules.

According to the Board, confidentiality rules that apply after the completion of a workplace investigation still require an employer to show if there are one or more legitimate justifications for requiring confidentiality even after an investigation is over, and if so, whether those justifications outweigh the effect of requiring post-investigation confidentiality on employees’ exercise of their rights under Section 7 of the Act.

If you feel a workplace investigation may be necessary, please contact us at (410) 727-4300.

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