Confidentiality Rules During Workplace Investigations

In 2019, the National Labor Relations Board (“NLRB”) issued a decision holding that employer rules which require employee confidentiality during workplace investigations are categorically lawful. However, the current status of this holding is uncertain, according to the NLRB General Counsel's  August 2021 Advice Memorandum, which sets forth areas of law that should be further scrutinized.

Confidentiality Rules During Open Investigations

In  Apogee Retail LLC d/b/a Unique Thrift Store, the NLRB overturned its prior approach to confidentiality rules, set forth by Banner v. Estrella Medical Center, which required a case-by-case determination of whether an employer can require confidentiality during a workplace investigation. Instead, the NLRB held that the standard developed in Boeing Co. should be applied, wherein employer rules fall in one of three categories: