Employers will have an easier time requiring confidentiality from workers during sexual harassment and other disciplinary workplace investigations, under a decision issued Dec. 17 by the National Labor Relations Board.
A 3-1 Republican board majority overruled an Obama-era decision requiring employers to justify use of nondisclosure rules that ban employees from discussing an ongoing investigation. That 2015 ruling required businesses to make a case-by-case determination of whether an investigation would be compromised if there isn’t a nondisclosure requirement. The NLRB’s latest decision would allow employers to implement blanket nondisclosure rules requiring confidentiality in all workplace investigations.
The issue has taken on greater significance in the #MeToo era, which heightened public awareness of the prevalence of workplace sexual harassment. The board’s rule generally aligns with the Equal Employment Opportunity Commission’s position—the agency has advocated for confidentiality requirements in sex harassment investigations in particular, saying it encourages victims and witnesses to come forward.
The EEOC deals with gender and other types of employment discrimination, while the NLRB handles union-related disputes. The two agencies had clashed in the past over where to draw the line between privacy rights and workers’ right to discuss job-related issues.
Some worker advocates argue that gag orders would make it harder for workers and victims of workplace illegality to share critical information that can help them deal with the working environment, or enable them to sue. Union organizers and officials have also said that blanket nondisclosure rules complicate cases where an employer retaliates against a worker for legally protected organizing activity, but claims the firing was for harassment.
NLRB General Counsel
The Dec. 17 decision stems from the investigative confidentiality rule at Apogee Retail, a second-hand clothing chain that does business as Unique Thrift Store.
‘Slight’ Impact on Workers’ Rights
The NLRB’s Republican majority said rules that require workers to keep open workplace investigations secret are always legal. Those rules that aren’t limited to the life of a probe, however, require a case-by-case determination, the board said.
The board analyzed investigative confidentiality rules under the framework for employer policies and handbook provisions from its 2017 decision in Boeing. That involves balancing an employer’s legitimate interests against the potential interference of workers’ rights.
Employers want to keep workplace probes secret to protect the integrity of the investigations, get evidence while workers’ memories are fresh, encourage prompt reporting of potential issues, and protect workers’ sensitive personal information, the NLRB said.
While acknowledging the importance of workers being able to confer with coworkers, the board said any adverse impact of gag orders on open investigations is “comparatively slight.”
“The rules at issue do not broadly prohibit employees from discussing either discipline or incidents that could result in discipline,” the board said. “Rather, they narrowly require that employees not discuss investigations of such incidents or interviews conducted in the course of an investigation.”
Employers may have compelling reasons for confidentiality rules that aren’t limited to the duration of a probe that outweigh potential harm to workers’ rights, the NLRB said. For example, there might be a situation in which the potential to out an informant might pose a threat to his or her safety, the board said.
Apogee Retail’s investigative confidentiality policy didn’t include limits, so the board sent the case back to an administrative law judge to determine whether it passes legal muster. The company’s attorney wasn’t immediately available for comment.
Silencing Victims, Union Activists
In dissent, Democratic Board Member Lauren McFerran said the Republican majority’s decision is “radical” and largely ignores the extent to which it will chill worker speech. Workers will feel forced to stay silent to avoid discipline, she said.
“A victim of sexual harassment will risk being fired if she dares to warn her coworkers or seeks help from an outside advocacy group,” McFerran said. “A union activist who believes she is being unfairly targeted for investigation by company officials looking for a pretext to discipline her will be left to wonder if asking for help from coworkers, consulting with the union, or even approaching the National Labor Relations Board during the course of the employer’s investigation will put her job at risk.”
Employers may have legitimate reasons for wanting to keep investigations under wraps, but blanket confidentiality rules also protect those companies whose investigations are biased, driven by anti-union animus, or just flawed, said McFerran, whose term on the board expired Dec. 16.
The case is Apogee Retail, N.L.R.B., Case 27-CA-191574, Decision 12/17/19.