December 17, 2019

Workplace Investigations: Are They Confidential?

On December 17th, the National Labor Relations Board (NLRB) announced, “work rules requiring confidentiality during the course of workplace investigations are presumptively lawful.”  Under the prior Administration, the NLRB ruled that employers had to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality.

Why the reversal? The NLRB found the prior rule improperly placed the burden of proof on the employer. So, if your workplace policy has a rule requiring  confidentiality during a workplace investigation, that policy will be considered by the NLRB as valid. To find otherwise, an employee would have to show that your policy outweighed the employee’s Section 7 rights under the National Labor Relations Act (NLRA). Those rights generally include the right to act in concert for employees’ mutual aid and protection in matters related to wages, hours or conditions of employment.

NOTE 1: There is more to come.  The NLRB did not rule as to the validity of such confidentiality rules that apply after the investigation concludes.

NOTE 2: Remember, it’s not just a union issue. The NLRA’s Section 7 rights apply to: (1) non-supervisory employees; including (2) those employees who are not represented by a union.