NLRB approves of confidentiality in workplace investigations

For several years, employers have been burdened by a conflict between a standard from the National Labor Relations Board (NLRB) and guidance from the Equal Employment Opportunity Commission (EEOC) regarding the confidentiality of workplace investigations.

On the one hand, the 2015 NLRB decision Banner Estrella Medical Center adopted a standard that an employee's rights under Section 7 of the National Labor Relations Act (NLRA)—which include discussing her terms and conditions of employment with other employees—take priority, and an employer maintains the burden to establish that its interests in conducting a confidential workplace investigation outweigh her interests in exercising those rights. On the other hand, the EEOC endorses blanket rules requiring confidentiality during investigations and advocates that employers should adopt such rules to protect those involved.

Employers can now breathe a sigh of relief because the NLRB has recently overruled the Banner standard, holding that work rules requiring confidentiality during the course of workplace investigations are presumptively valid.

Banner overruled and replaced

In Banner, the NLRB indicated employees have a Section 7 right to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers. Therefore, an employer may restrict discussions only when it shows it has a legitimate and substantial business justification that outweighs employees' Section 7 rights. The standard effectively placed a heavy burden on the employer.