loader
Page is loading...
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

Full Steam Ahead, At Least In Part, for Union Election Rule Changes

June 3, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Federal Judge Strikes Down NLRB Election Rule

June 1, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Catch-22? Company’s Scrutiny of Immigration Documents Deemed Unlawful

May 27, 2020 | Labor Relations, National Labor Relations Board, Union Organizing

NLRB Nixes Telephonic Pre-Election Hearing, Orders Remote Video Hearing Instead

May 15, 2020 | Labor Relations, National Labor Relations Board

Labor Law Considerations As You Restart Your Business

May 8, 2020 | Labor Relations, Unions and Union Membership, Federal Laws and Legislation

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.