loader
Page is loading...
Print Logo Logo
Confidential

NLRB Squares Itself With EEOC: Employers May Require Confidentiality During Open Investigations


Imagine this scenario: A female employee complains to HR claiming she is being sexually harassed by a male coworker. HR immediately convenes an investigation, and to protect the integrity of the investigation, reminds the accuser, the accused and witnesses of its policy that employees are prohibited from discussing the investigation with coworkers during the investigation. The accused employee files a claim with the National Labor Relations Board, stating the company’s policy violates his rights under federal labor law. Until recently, the accused employee stated a valid claim under federal labor law because of Banner Health Systems (362 NLRB 1108 (2015)).  

On Dec. 17, the NLRB reversed the confounding Banner Health decision that had placed employers in the untenable position of potentially violating the NLRA in order to protect the integrity of internal investigations, which are critical to enforcement of anti-harassment policies. In an early holiday gift, in Apogee Retail, the NLRB reversed Banner Health, and found that employer policies that require confidentiality during internal investigations are per se lawful.  

The NLRB’s previous stance had placed the NLRB at odds with the EEOC, which encouraged employers to maintain confidentiality requirements in internal investigations, particularly sexual harassment investigations, noting confidentiality provisions encourage victims and witnesses to come forward. Under the new NLRB standard announced Dec. 17, an employer may properly require confidentiality during open investigations. However, confidentiality requirements that are not, on their face, limited to open investigations remain subject to challenge to see if they unlawfully interfere with employee rights under federal labor law. 


RELATED ARTICLES

Labor Law Recap: 2022 Was The ‘Year of the Strike’

January 10, 2023 | Labor Relations, Strikes and Picketing

Labor Law Changes To Be Aware Of In The New Year

January 3, 2023 | Labor Relations, National Labor Relations Board

Prices Keep Rising: Labor Board Significantly Expands Remedies Available To Employees

December 14, 2022 | Labor Relations, National Labor Relations Board

Triple Threat: NLRB Facing Staffing Shortages, Increased Workload, and Budgetary Constraints

November 30, 2022 | Labor Relations, National Labor Relations Board

Reversing the Call: NLRB Seeks to Rescind 2020 Rule, Protect Union Status

November 8, 2022 | Labor Relations, National Labor Relations Board

Subscribe

Do you want to receive more valuable insights directly in your inbox? Visit our subscription center and let us know what you're interested in learning more about.

View Subscription Center
RELATED TOPICS
EEOC
NLRB
labor law
harassment investigation
Trending Connect
We use cookies on this site to enhance your user experience. By clicking any link on this page you are giving your consent for us to use cookies.