Thursday 19th December 2019
Imagine this scenario: An employee complains to the HR department and claims that she was sexually harassed by a male employee. Human Resources immediately calls an investigation and, in order to protect the integrity of the investigation, reminds the Prosecutor, Defendant, and Witnesses of its policy of prohibiting employees from discussing the investigation with colleagues during the investigation. The accused employee files a lawsuit with the National Labor Relations Board, stating that the company policy violates his rights under federal labor law. Until recently, the accused employee stated a valid claim under federal labor law based on Banner Health Systems (362 NLRB 1108 (2015)).
On December 17, the NLRB overturned Banner Health’s confusing decision, which had left employers in an intolerable position of potentially violating the NLRA in order to protect the integrity of internal investigations that are critical to enforcing anti-harassment policies are. In an early Christmas present at Apogee Retail, the NLRB reversed Banner Health, stating that employer policies requiring confidentiality in internal investigations are lawful per se.
The NLRB’s previous stance had brought the NLRB into conflict with the EEOC, which encouraged employers to maintain confidentiality requirements in internal investigations, particularly sexual harassment investigations. The confidentiality provisions encouraged victims and witnesses to come forward. Under the new NLRB standard, announced on December 17, an employer can properly require confidentiality in an open investigation. Confidentiality requirements, which at first glance are not limited to open investigations, must, however, continue to be checked to determine whether they unlawfully impair employee rights under federal labor law.
© 2020 BARNES & THORNBURG LLPNational Law Review, Volume IX, Number 353
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