National Labor Relations Board Reverses Prior Ruling That Limited Employers’ Ability to Keep Workplace Investigations Confidential: NLRB Holds That Employers May Maintain Confidentiality of Ongoing Workplace Investigations or Interviews.

Sullivan & Cromwell LLP - December 19, 2019
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On December 17, in Apogee Retail LLC, the National Labor Relations Board overruled a 2015 decision and held by a 3-1 margin that employer policies restricting or prohibiting employee communications about ongoing investigations are permitted by the National Labor Relations Act.  The ruling provides employers with greater certainty as to steps they may take to protect the confidentiality of ongoing investigations and the privacy of individuals involved.  The Board also found that employers may justify such restrictions after the conclusion of an investigation on a case-by-case basis by establishing one or more “legitimate justifications for requiring confidentiality” that outweigh the effects of post-investigation confidentiality.