New NLRB Decision Eases Restrictions on Keeping Harassment Investigations Confidential

Between 2005 and 2015, the restaurant and hospitality industry had the highest percentage (14 percent) of sexual harassment filings received by the Equal Employment Opportunity Commission (“EEOC”),[1] in which the complainant's industry was specified.[2] The real percentage may well be higher, as more than half of the EEOC's sexual harassment filings during that time did not specify the complainant's industry.

In the years since the #MeToo movement catapulted workplace sexual harassment into the national spotlight, employers across all industries have been encouraged to implement or update sexual harassment policies, including reporting procedures and investigation practices. When an employer receives a complaint, it should promptly begin an investigation into the alleged conduct to determine whether the complaint is justified. A thorough investigation serves several purposes: It can allow the employer to stop harassment and properly discipline a harasser, prepare the employer to respond to an EEOC investigation, deter harassing behavior in other employees, show aggrieved employees that their complaints are taken seriously, and more.

Retaliation Exposure

Many employers would prefer to keep such investigations confidential for a number of reasons. Among the more compelling reasons is that confidentiality reduces the chance that the complainant and others participating in the investigation will be subject to retaliation. In 2018, retaliation claims represented more than 51 percent of claims received by the EEOC, and a significant majority of sexual harassment claims are accompanied by retaliation claims.[3]

Reducing the possibility of retaliation decreases the employer’s exposure, and it increases the likelihood that employees will report alleged harassment. If employers could guarantee the confidentiality of sexual harassment investigations, it is likely that more employees would report harassment problems early, before the problems escalated into formal charges or litigation.

NLRB Ruling on Employer Confidentiality

Notwithstanding these possible benefits of maintaining the confidentiality of investigations into alleged harassment,  many employers have been warned against assuring employees that their complaints and the resulting investigations will be kept confidential, however, this is because until recently, requiring employees to keep ongoing investigations confidential would have exposed an employer to a claim under Section 7 of the National Labor Relations Act ("NLRA"). The NLRA is a federal law governing collective bargaining and protecting the rights of workers to unionize, but Section 7 applies in nearly all private workplaces regardless of their union status. Section 7 of the NLRA provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."[4] 

In 2015, the National Labor Relations Board (the "Board")—the federal agency tasked with enforcing the NLRA—issued its decision in Banner Health Systems,[5] in which it held that maintaining an investigative confidentiality rule violated Section 7. The Board found that employees' ability to discuss ongoing disciplinary investigations among themselves was "vital to employees' ability to aid one another in addressing employment terms and conditions with their employer."[6] Under the standard articulated in the Banner Health decision, an employer could only require confidentiality during an investigation if it made an individualized determination that there would be "serious threats to the integrity of an employer investigation" without such confidentiality.[7]

In December 2019, the Board changed its position. In Apogee Retail LLC d/b/a Unique Thrift Store & Kathy Johnson,[8] the Board specifically overruled Banner Health, holding that it was not unlawful under the NLRA for an employer to have a facially neutral rule requiring employees involved in ongoing workplace investigations to keep the investigations confidential. In making this decision, the Board noted that Banner Health had failed to properly consider an employer's legitimate business justifications for keeping investigations confidential. The Board acknowledged that such a rule would slightly impact employees' Section 7 rights, but found that employers’ compelling interests in confidentiality outweigh employees' interests. Among other compelling justifications for maintaining an investigative confidentiality rule, the Board considered that such rules can help protect employees who report and participate in internal investigations from retaliation and further harassment. In addition, employees who feel their safety and confidentiality will be assured are more likely to honestly report problems and cooperate with investigations. The Board specifically considered the sensitive nature of investigating sexual harassment claims:

Such confidentiality rules are especially necessary during employer investigation of sexual harassment complaints, where victims of such discrimination are more likely to report abusive behavior if they are assured that their allegations will be investigated in a confidential manner. But assurances of confidentiality cannot be responsibly given unless employers can require confidentiality, and under Banner [Health] employers cannot lawfully adopt rules prospectively requiring investigative confidentiality.[9]

Impact for Employers

Apogee is not a green light to implement blanket bans on discussions relating to any workplace investigation, however. The Board noted with approval that the rules at issue in Apogee were narrow, applying only to employees who were involved in an investigation and prohibiting discussion only of the investigation itself, including investigation-related interviews. They did not prohibit uninvolved employees from discussing the investigation, nor did they prohibit discussion of the underlying incident that spurred the investigation. Additionally, the Board warned that investigative confidentiality rules applying to completed investigations may be subject to increased scrutiny, and may be more likely to violate Section 7. The Board’s decision in Apogee was limited to investigative confidentiality rules that apply only for the duration of an investigation.

Apogee could be good news for employers who are concerned about implementing effective sexual harassment policies.. Allowing employers to require confidentiality in ongoing investigations could result in more employees feeling safe enough to report problems early. This could allow employers the opportunity to catch brewing harassment problems before they spiral into expensive and time-consuming litigation.