By Debra L. Reilly and Maris Brancheau
Those conducting workplace investigations of harassment, discrimination, retaliation, and related claims sometimes issue confidentiality admonitions, requesting that interview participants not discuss the investigation outside of the interview process. While confidentiality is key in workplace investigations, investigators must stay abreast of when and how to request it. In the past, this sometimes seemed murky—particularly because the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) offered conflicting guidance.
Recently, however, the NLRB gave investigators reason to revisit their confidentiality admonitions, ruling that private sector employers can lawfully administer admonitions and require confidentiality during workplace investigations. Under the former rules, employers had the burden of justifying a prohibition on employees discussing ongoing investigations and demonstrating that it outweighed their right to discuss the investigation with coworkers, on a case-by-case basis.
The NLRB decision, Apogee Retail LLC d/b/a Unique Thrift Store, 1 released in December 2019, holds that employer rules requiring employees to maintain confidentiality during investigations are presumptively lawful. This article discusses the prior precedent, Banner Health, 2 as well as the implications of the new Apogee Retail ruling. It also offers tips for investigators and employers seeking to preserve the integrity of their investigations and to comply with the changing legal standards.
The Banner Health Precedent
Investigators and employers have long been grappling with balancing employee “concerted activities” rights with the desire for confidentiality during investigations, based on the NLRB precedent established in Banner Health.3
In that case, the Board set forth a rule that an employer seeking confidentiality in an investigation could only restrict discussions where it could specifically show a legitimate and substantial business justification outweighed employees’ Section 7 rights to discuss discipline or ongoing disciplinary investigations. The Board held that an employer has the burden to justify a prohibition on employees discussing a particular ongoing investigation before requiring confidentiality. It reaffirmed the standard set in Hyundai American Shipping Agency that an employer must consider whether: witnesses needed protection, evidence might be destroyed, testimony might be fabricated, or a potential cover-up existed.4
In Banner Health, a human resources consultant routinely asked employees involved in workplace investigations not to discuss the matter with coworkers while the investigation was ongoing. She made the same statement to an employee who came to her to report patient safety concerns after a supervisor had asked him to use hot water from a coffee pot to sterilize surgical equipment when a hot water pipe in the workplace failed. He refused to follow his supervisor’s instructions, was subsequently issued a “coaching” based on insubordination, and later given a negative performance review—key components triggering the investigation at issue.
The NLRB found that the employer’s rule prohibiting employees from discussing ongoing investigations of employee misconduct violated Section 8(a)(1) of the National Labor Relations Act (NLRA),5 and amounted to an unfair labor practice.
California Public Sector Unaffected
California practitioners conducting workplace investigations in the public sector are likely aware that the Public Employment Relations Board (PERB) adopted the Banner Health holding in Perez v. Los Angeles Community College District,6 decided in 2014.
The Perez case held that overbroad, blanket employer rules prohibiting a subject from having any contact with coworkers while out on administrative leave potentially violated the employee’s rights when they could be interpreted to mean that the subject could not contact union members, communicate in an effort to file a grievance, or seek support from other employees.7
Although Apogee Retail overrules Banner Health for private sector cases, the Perez case precedent still applies to public sector investigations in California, unless PERB reverses itself. State guidelines for public sector confidentiality admonishments should still be followed.
A Closer Look at Apogee Retail
In the facts underlying the recent decision, Apogee Retail maintained two written rules requiring employees to “maintain confidentiality” regarding workplace investigations into “illegal or unethical behavior” and prohibiting “unauthorized discussion” of investigations or interviews “with other team members.”8
After scrutinizing these provisions, the Board overruled the standard set in Banner Health for the legality of confidentiality rules. It held that investigative confidentiality rules are properly analyzed under the test for facially neutral workplace rules used in The Boeing Company, 9 which established that such rules are categorically lawful when applied during the investigation. “Blanket confidentiality” rules, which prohibit any discussion of the investigation at any point, still require the employer to show, on a case-by-case basis, a legitimate justification for requiring confidentiality after the investigation concludes that outweighs the employees’ rights under Section 7 of the NLRA.
Notably, in Apogee Retail, no employee had been disciplined under the two rules in question. The decision justifies confidentiality requests during the pendency of an investigation. It acknowledges an employee’s need for confidentiality and notes that four of the most compelling reasons are to:
- Ensure the integrity of the investigation,
- Obtain and preserve evidence while employees’ recollections of relevant events are fresh, 3.Encourage prompt reporting of a range of potential workplace issues—unsafe conditions or practices, bullying, sexual harassment, harassment based on race or religion or national origin, criminal misconduct, and so forth—without employee fear of retaliation, and
- Protect employees from dissemination of their sensitive personal information.10
The Apogee Retail decision notes that:
The integrity of any investigation depends on the investigator’s ability to ensure that potential witnesses do not coordinate their accounts of relevant events. To achieve that assurance, an employer must be able to require that matters discussed in an investigative interview not be disclosed outside that room while the investigation remains open. Otherwise, it would be all too easy for the first employee interviewed to report what was asked and what he or she said in response to others, who could then frame their accounts accordingly.11
Additional justifications for requiring and requesting confidentiality exist, enumerated here as reminders of the importance of preserving an investigation’s integrity.
- Witnesses will feel more comfortable reporting what they know if they are assured their statements will not be shared with others except on a need-to-know basis.
- Witnesses and the complainant will have an extra layer of protection from retaliation if their statements are preserved as confidential and not openly shared among coworkers.
- Confidentiality can also help thwart potential witness tampering and story building and ensure that witnesses tell only what they have personally seen or heard.
As the Board succinctly put it in Apogee Retail: An investigative confidentiality rule gives employees a plausible defense against the pressure to discuss an open investigation simply by saying: “Sorry. I can’t talk about it. If I did, I’d get fired!”12
The Conflict between the EEOC and the NLRB
As noted, a conflict has existed between guidance from the EEOC and decisions of the NLRB.
The EEOC recognizes that confidentiality requirements both protect the subject of an investigation and also encourage complainants, targets, bystanders, and other witnesses to bring forward complaints and participate in investigations. The EEOC has specifically stated that employers should make it known to employees that the employer will protect the confidentiality of harassment allegations to the extent possible.13 California’s Department of Fair Employment and Housing has similar guidelines.14
However, Section 7 of the NLRA states that employees have the right to self-organization, including the right to engage in “concerted activities for both collective bargaining or other mutual aid and protection.”15 The Commission’s Select Task Force on The Study of Harassment in the Workplace released a June 2016 report calling for consultation between the EEOC and NLRB to “clarify and harmonize” the permissible confidentiality of workplace investigations.16 And the recent Apogee Retail decision seeks to make the rules of both agencies more congruent.
Takeaways for Workplace Investigators
First, under the standard in Boeing,17 applied by the Apogee Retail panel, employer rules or policies should not broadly prohibit employees from discussing incidents that could result in employee discipline. Instead, the employer must narrowly tailor policies and procedures to require that employees not discuss the investigation of such incidents nor discuss the interviews conducted in the course of an investigation. Such tailored rules, policies, practices, and procedures are likely to be found lawful. Also, employees who are not involved in an investigation are free to discuss the workplace incidents, without limitation.
Second, private sector employer policies or investigator admonishments should not restrict employees from discussing workplace issues generally nor limit any employee’s ability to discuss disciplinary policies and procedures. Employee policies should never prohibit a union-represented employee from requesting the help of a union representative during such an investigation or from reporting issues to a federal or state agency. Investigator admonishments should also include a statement directly expressing that the content of the interview may be discussed with a union or legal representative.
Third, a private sector employer’s verbal or written admonishment to interviewees not to discuss the investigation, the investigative interview, the questions asked, the answers given, and information learned or provided during the interview would generally be considered lawful per se, as long as the investigator specifies that the confidentially “request” only applies while the investigation is continuing.
Fourth, private sector employers who wish to extend confidentiality rules beyond the pendency of an investigation will still have the burden of showing, on a case-by-case basis, that the benefit outweighs the employee’s rights to engage in “concerted activities for both collective bargaining or other mutual aid and protection” under Section 7 of the NLRA. This standard is a higher burden and could subject the employer to running afoul of the NLRA, resulting in an unfair labor practice violation. Unless a compelling argument can be made otherwise, confidentiality rules and admonitions are best tailored so they only remain in force for the limited duration of the investigative process.
Finally, employers and investigators should explain to complaining parties and witnesses that all information gathered will remain confidential to the extent possible. To question respondents or accused parties thoroughly and to afford them with procedural fairness, some information will obviously need to be revealed when conducting the investigative interview. However, informing each person interviewed that the information will only be shared on a “need to know” basis is one way to ensure that participants realize they should not have any expectations or guarantees of complete confidentiality.
Originally published in The AWI Journal Vol. 11 No. 1 March 2020.
1 Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019). 2 Banner Health Sys. d/b/a Banner Estrella Med. Ctr., 362 N.L.R.B. 1108 (2015); enf. denied on other grounds, 851 F.3d 35 (D.C. Cir. 2017). 3 The case first came to the NLRB in Banner Health Sys. d/b/a Banner Estrella Med. Ctr., 358 N.L.R.B. No. 93 (2012), but its similar outcome was rendered invalid by the later U.S. Supreme Court decision in N.L.R.B. v. Noel Canning, 134 S. Ct. 2550 (2014). However, based on the same underlying facts as set forth in 2012, the 2015 Banner case reaffirmed the Board’s earlier decision shifting the burden to the employer to show that confidentiality interests outweighed the NLRA’s Section 7 rights. 4 Hyundai Am. Shipping Agency, 357 N.L.R.B. 860, 874 (2011). 5 29 U.S.C. § 158(a)(1). 6 Perez v. Los Angeles Community Coll. Dist. (2014) PERB Decision No. 2404-E (Issued on 12/24/14). 7 Id. at 3. 8 Apogee Retail LLC d/b/a Unique Thrift Store, 368 N.L.R.B. No. 144 (2019). 9 The Boeing Co., 365 N.L.R.B. No. 154 (2017), 10 Id. at 4. 11 Id. 12 Id. at 5. 13 See “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors” (June 18, 1999), Section V(C)(1) “Confidentiality,” available at: https://www.eeoc.gov/policy/docs/harassment.html. 14 The Department’s December 2017 Sexual Harassment Pamphlet provides that harassment, discrimination and retaliation policies must “create a complaint process that ensures confidentiality to the extent possible.” See https://www.dfeh. ca.gov/wp-content/uploads/sites/32/2017/06/DFEH-185-ENG.pdf. 15 29 U.S.C. §§ 157 (2000). 16 https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm. 17 The Boeing Co., 365 N.L.R.B. No. 154 (2017).