National Labor Relations Board Issues Two Precedent-Shifting/Pro-Employer Decisions

Employers can require confidentiality from workers during workplace investigations.

On December 16, 2019, in Apogee Retail, N.L.R.B., Case 27-CA-191574, a 3-1 Republican National Labor Relations Board (the "NLRB") majority overruled an Obama-era decision requiring employers to justify nondisclosure rules that ban employees from discussing ongoing investigations by making a case-by-case determination of whether an investigation would be compromised in the absence of a nondisclosure requirement. Now, the NLRB's Apogee Retail decision allows employers to implement blanket nondisclosure rules mandating confidentiality during the duration of workplace investigations. The NLRB also found that nondisclosure rules that go beyond the life of an investigation continue to require a case-by-case determination of whether nondisclosure is required.