Reversals Continue at Trump NLRB with Decision Giving Employers More Leeway to Enforce Investigation Confidentiality

In 2015, the NLRB drew criticism from the employer community when it ruled that an employer could not lawfully restrict employee discussion of a workplace investigation unless it established that it had a “legitimate and substantial business justification” for doing so in the particular case at hand that outweighed employees’ right to discuss such issues among themselves.  Banner Estrella Medical Center, 362 NLRB 1108 (2015).  The employer could make such a showing with evidence that in the investigation at issue, 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.   Among other reasons, Banner Estrella was criticized for undervaluing a commonly accepted best practice for conducting investigations that helped to ensure prompt, accurate, and effective investigations in every case.

In the latest of a series of reversals of controversial Obama-era precedent, the Trump NLRB recently overruled Banner Estrella and held that investigative confidentiality restrictions are presumptively lawful when they are limited to open investigations.  Apogee Retail LLC, 368 NLRB No. 144 (2019).  In so doing, the Board credited many of the criticisms of Banner Estrella, finding that all open investigations may benefit from confidentiality restrictions because they enable prompt responses to misconduct, protect privacy and discourage retaliation, and ensure the integrity of the information gathered in the investigation.   The Board in Apogee further found that the impact of such restrictions on employee rights is comparatively slight.   To continue confidentiality restrictions beyond the closing of an investigation, however, the employer must justify the continued restrictions based on the facts of the case.

The Bottom Line

The Apogee decision should lessen the legal risk associated with maintaining the confidentiality of open investigations.  Further, Apogee continues the Trump NLRB’s trend of overruling controversial pro-employee decisions from the Obama era.  Employers should continue to stay appraised of activity at the NLRB, as Banner Estrella is unlikely to be the last Obama case to be overruled in the next year or more.