NLRB loosens restrictions on confidentiality instructions for investigations

On December 16, 2019, the National Labor Relations Board (NLRB) issued a decision in Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson upholding employers' ability to instruct employees involved in workplace investigations to maintain confidentiality. Going forward, however, New Jersey employers must be mindful of laws that not only allow, but encourage, employees to discuss work-related matters.

NLRB overturns Obama-era decision

In Apogee Retail, the NLRB overturned its controversial 2015 decision in Banner Estrella Medical Center that an employer's instructions that employees refrain from discussing internal investigations wouldn't be presumed valid. In Banner, the NLRB found that before giving a confidentiality instruction, an employer must determine, on a case-by-case basis, that its “interests in preserving the integrity of an investigation” outweighed an employee's right to discuss “discipline or ongoing disciplinary investigations” with coworkers.

In Apogee Retail, the NLRB considered two workplace rules applicable to employees involved in investigations. The first rule mandated that employees “maintain confidentiality” of workplace investigations. The second rule banned employees from “unauthorized discussion” of workplace investigations with other employees.

With regard to the first rule, the NLRB found that confidentiality rules that are effective only for the duration of an ongoing investigation are lawful. In support of that finding, the Board relied on the following analysis: