Hard to believe these days, but non-Covid-19-related developments do still pop up from time-to-time. Last week, the NLRB gave us one on an issue the employer community has closely watched: whether an employer can instruct employees to keep an open internal investigation confidential.
The NLRB answered with a clear “yes” in Securitas Security Services USA. The decision is one of the first in which the NLRB has applied the revised standard for confidentiality rules for ongoing investigations articulated in December 2019 in Apogee Retail LLC, 369 N.L.R.B. No. 144 (2019).
In Securitas, the employee witnessed an incident involving a coworker and a supervisor. The incident resulted in the coworker making a race discrimination complaint against the supervisor. The employee was the only witness to the incident.
During its investigation into the incident with the coworker and the supervisor, the employer interviewed the employee. In the interview, the employer instructed the employee not to discuss the incident or the investigation. The employee later emailed the employer specific questions about this instruction.
In response, the employer explained that all employees were “barred from talking during the time of the investigation in any circumstances” and that “after the investigation had concluded if any one starts conversing about it and those conversations become a distraction to the workplace anyone involved in conversing could face disciplinary action in accordance with the handbook.” The employer intended this prohibition to limit gossip about the coworker’s race discrimination complaint and to encourage employees to come forward with statements and comments about the workplace.
The employee filed a complaint alleging that the employer’s confidentiality requirement violated Section 8(a)(1) of the NLRA. The administrative law judge concluded that the employer had violated the NLRA because it had not shown that it had a particularized legitimate and substantial business justification for its decision to restrict employees’ discussions of the incident and investigation.
The NLRB disagreed. The NLRB explained that under Apogee Retail LLC, investigative confidentiality rules limited to open investigations are lawful to maintain because the justifications associated with such rules outweigh their potential adverse impact on employees’ exercise of their protected rights under the NLRA. Applying this standard, the NLRB found that the employer’s confidentiality instruction to the employee did not violate the NLRA. The confidentiality instruction was limited to the time of the investigation — exactly the type of rule found categorically lawful to maintain in Apogee Retail LLC.
What about the further instruction addressing what the employer’s expectation was once the investigation had “concluded”? The NLRB noted that a reasonable employee would interpret this instruction to be subject to the employer’s generally applicable rules against disruptive, inappropriate, or abusive conduct. It was not an instruction for employees to maintain confidentiality even after the investigation was over.
This decision should reassure employers who want to implement confidentiality rules for open investigations. Certainly there are many reasons why confidentiality rules for open investigations are desirable. Not only can these confidentiality rules help employees feel comfortable coming forward with complaints and statements, they may also ensure the integrity of the investigation. Employers, however, should hesitate before attempting to implement confidentiality provisions that go beyond open investigations, as these expanded rules were not addressed in Securitas.