In 2019, the
Confidentiality Rules During Open Investigations
In
Category 1 includes rules that the Board designates as lawful to maintain either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of National Labor Relations Act (“NLRA”) rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
Category 2 includes rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
Category 3 includes rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with each other.
The
This decision benefitted employers who wanted to keep open investigations confidential. However, Apogee was decided by the
TAKEAWAY: The state of rules regarding confidentiality during workplace investigations is uncertain. Employers should exercise caution in using such rules to avoid running afoul with shifting interpretations of the NLRA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Ms
Wilentz, Goldman & Spitzer
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