A split panel of the NLRB has ruled that employers may implement and consistently enforce policies that prohibit employees from discussing pending investigations where such prohibition is limited to the duration of the investigation. The decision overruled a 2015 decision that severely restricted an employer's ability to require employees to maintain confidentiality during an ongoing workplace investigation.
Placing a great deal of weight on the Board's duty to strike the appropriate balance between an employer's asserted business justifications and the employees' Section 7 rights, the majority found it was appropriate to review an employer's confidentiality policy under the Boeing standard for evaluating a facially neutral policy. Under Boeing, when analyzing a facially neutral rule that would potentially interfere with the exercise of employee Section 7 rights, the Board evaluates (1) the nature and extent of the potential impact of the rule on NLRA rights, and (2) legitimate justifications associated with the rule.
Applying the Boeing test to a policy that required employees to maintain confidentiality during a workplace investigation, the Board determined investigative confidentiality rules are lawful when tailored to apply only to an open or active investigation. In light of this precedent-changing decision, employers should review their policies and consider whether or not they want to implement (or return to) a policy that requires employee confidentiality during the pendency of an active workplace investigation.
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