NLRB Reaffirms Employer’s Right to Require Confidentiality During Internal Investigation

In Securitas Security Services, the National Labor Relations Board concluded that the employer lawfully required confidentiality during an internal investigation of a confrontation and allegation of racial discrimination. Specifically, a manager told an employee that all employees were prohibited from discussing the confrontation and investigation while the investigation was ongoing. The Board reaffirmed its 2019 decision in Apogee Retail LLC establishing that confidentiality rules limited to the duration of an investigation are categorically lawful. (See our discussion of Apogee Retail here.)

Additionally, in this case, the manager added that after the investigation is concluded “if anyone starts conversing about [the incident and investigation] and those conversations become a distraction to the workplace, anyone involved in conversing could face disciplinary action in accordance with the handbook.” In a footnote, the Board noted that an objectively reasonable employee would understand that this statement was not part of its confidentiality policy, but rather as a reminder that, while not banned, conversation about the confrontation and investigation would remain subject to work rules against disruptive, inappropriate, or abusive workplace discussions. (Recall, in Apogee Retail, the Board remanded the case to address whether the justification for the employer’s confidentiality rule requiring confidentiality after the investigation outweighed the rule’s effect on employees’ rights under the National Labor Relations Act.)

The takeaway here is a reaffirmation that employers may require employees to maintain confidentiality during an internal investigation. Further, while requiring confidentiality after the investigation will be subject to increased Board scrutiny, employers may remind employees that post-investigation discussion of the investigation or underlying incident remain subject to the employer’s civility work rules.