The NLRB Approves Confidentiality Rule with Regard to an Ongoing Employer Investigation

Written by Jeremy Mittman and Justine Wallace

Can an employer ask employees to keep interviews conducted in the context of a workplace investigation confidential?  Yes, says the NLRB, in a helpful ruling for employers– that applies to both unionized and non-unionized workplaces.

A majority 2-1 decision by the National Labor Relations Board (the “Board”) held that an employer did not violate federal law after instructing employee witnesses to keep investigative interviews confidential. 

The matter involved aluminum manufacturer Alcoa and United Steelworkers Local 104.  Alcoa conducted an investigation into allegations that an employee had made racially charged comments and generally subjected others to disrespectful treatment.  During the investigation, Alcoa instructed each employee witness to keep the interview discussions confidential, including from supervisors and other employees. 

Upon initial review, in 2019, an administrative law judge (“ALJ”) found that Alcoa’s confidentiality instruction violated federal law because it interfered with employees’ rights to discuss workplace disciplinary matters and did not have a time or place limitation.  Alcoa requested that the Board review the ALJ’s decision. 

Between the time of the ALJ’s decision and the Board’s review, however, the Board changed the precedent regarding employer investigations and confidentiality rules.  The precedent had previously stated that an employer could only restrict discussions of ongoing investigations if the employer could show a substantial and legitimate business justification outweighing employees’ rights.  Yet, in a matter referred to as Apogee, the Board overruled this precedent and held that an employer may implement a confidentiality rule, so long as it is clear by the terms of the rule that the confidentiality requirement only applies for the duration of the investigation.  The Board then further expanded on its Apogee decision in a matter referred to as Watco.  In Watco, the Board held that in a situation of a one-on-one oral confidentiality instruction, the Board may consider the surrounding circumstances and determine whether an employee would have reasonably understood the instruction to be limited to the duration of the investigation. 

The Board applied the new Watco reasoning when it reviewed the ALJ’s Alcoa decision.  The Board held that based on the circumstances surrounding Alcoa’s investigation, the employee witnesses would have reasonably known that the confidentiality instruction only applied while the investigation was ongoing.

It is worth noting that the Board’s decision was split 2-1.  NLRB members Marvin Kaplan and John Ring found that Alcoa’s confidentiality instruction did not violate federal law.  NLRB Chairman Lauren McFerran, however, disagreed and dissented.  McFerran stated that the Board’s decision illustrated the flaws in the approach adopted in Apogee and Watco and that Alcoa continued the “erosion of employees’ right” to discuss disciplinary matters and investigations with their coworkers and union.  Despite the disagreement, under the Board’s current standard, an employer may implement a confidentiality rule with regard to an ongoing investigation, so long as the rule is limited to the duration of the investigation. 

Furthermore, the Board may consider the surrounding circumstances to determine whether an employee witness would have reasonably known that the confidentiality rule was limited to the duration of the investigation.  Nonetheless, employers that instruct employees to keep witness interviews confidential are advised to mention that the instruction applies to the duration of the investigation.

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