What This Week's NLRB Ruling on Investigation Confidentiality Means for Nuclear Employers
By Donn C. Meindertsma
Nuclear workplace investigations, including those conducted by employee concerns programs, often address sensitive matters such as employee behaviors, questionable fitness for duty, and alleged misconduct. These types of matters can have significant regulatory implications and it is important to protect investigation integrity. A few years ago, however, the National Labor Relations Board (Board) restricted the ability of employers to instruct concerned individuals and interviewees to keep mum about an ongoing investigation. This week, the Board reversed course.
The Old Rule on Investigation Confidentiality
If you’ve routinely directed interviewees to keep quiet about an investigation, or if you maintain a policy that requires them to, you’ve been taking a clear legal risk. A few years ago, the Board held that these confidentiality mandates are presumably unlawful. The National Labor Relations Act (NLRA) gives employees the right to discuss workplace issues among themselves and, according to the Board, instructing employees not to discuss investigations interfered with those rights. Also, according to the Board, work rules on investigation confidentiality could chill employees from
exercising those rights. While the Board did not outlaw investigation confidentiality requirements altogether, it required an employer to determine, on a case-by-case basis, whether the interests in preserving the integrity of an investigation outweighed employees' NLRA rights. Under the Board view that prevailed until this week, an employer could tell employees to keep quiet about an investigation only if it had specific evidence that, in that particular investigation, "evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up."
These legal parameters affected all workplaces. While
some people erroneously believe that Board rulings matter only to unionized workplaces, or that NLRA rights belong only to union-represented workers, NLRA rights cover almost all non-supervisory workers.
The Board's Recent Decision
The employer in the case leading to this week's Board ruling had a Code of Business Conduct that encouraged employees to report illegal or unethical behavior. One provision stated:
members are expected to cooperate fully in investigations and answer any questions truthfully and to the best of their ability. Reporting persons and those who are interviewed are expected to maintain confidentiality regarding these investigations.
A corresponding work rule stated that the unauthorized discussion of investigations or interviews could lead to disciplinary action. A complaint was filed in 2017 alleging that the code provision and the work rule violated employee rights under the NLRA.
In its new
decision regarding that complaint, the Board first overruled prior decisions about investigation confidentiality. According to the Board, the old rule did not properly weigh the competing interests of employers and employees; it instead "assigned a value of zero" to an employer's investigation confidentiality interests while simultaneously requiring the employer "to sustain an unduly onerous burden of proof" to justify confidentiality. The Board noted that investigation confidentiality rules can aid employees by giving them a defense against pressure from co-workers: they may respond: "Sorry. I can't talk about it. If I did I'd get fired!"
next held that it would apply its "Boeing" test to investigation confidentiality rules. Under that test, devised in 2017, the Board first considers the degree to which a work rule potentially infringes on employee rights. If, from the perspective of a reasonable employee, the rule would burden NLRA rights, the Board will then consider the employer's reasons for the rule. Based on these considerations, a rule is designated as a Category 1, 2, or 3 rule. (See sidebar for more information.)
In the case before it, the Board found that the employer's investigation confidentiality rules only slightly impacted employee rights. For one thing, only workers privy
to internal investigations were barred from sharing information, such as the questions they were asked in an interview. Other employees were free to talk about the events that led to the investigation. In contrast, employers have compelling reasons for investigation confidentiality rules, such as protecting employee privacy and ensuring investigation integrity. For these reasons, the Board held that investigation confidentiality rules are lawful, if they apply only during the time the investigation is pending. Once an investigation is over, protecting investigation integrity is no longer a justification for requiring confidentiality, so a rule requiring continued confidentiality will be subject to further balancing to determine if other legitimate interests outweigh the rule's
impact on NLRA rights. Accordingly:
- A rule that imposes confidentiality obligations on interviewees while an investigation is underway is lawful (Category 1(b)).
A rule that fails to specify a time limitation or that requires confidentiality beyond an investigation's completion will be subject to further review (Category 2).
Ramifications for Nuclear Employers
The Board's old approach had the clear potential to conflict with NRC requirements. Specifically, the NRC has a greater interest in ensuring that licensees maintain the integrity of investigations into safety-related events or issues than it does in whether the employer sufficiently respects NLRA rights. The NRC would expect, for example, that if an investigation carried the risk that the concerned individual might be retaliated against for reporting a nuclear safety concern, management would take appropriate steps to mitigate that risk, including by
instructing interviewees not to discuss the investigation with co-workers. Of course, even under the old Board rule a nuclear employer could assert that nuclear regulatory interests justified investigation confidentiality; however, the employer would need to assess that justification anew at the start of each investigation, and there is no guarantee the Board would agree with the employer's assessment in any given case. The Board's new decision largely alleviates the potential conflict with NRC expectations (and the expectations of other federal agencies; see sidebar).
Now is the time for nuclear employers to review investigation confidentiality
provisions contained in their policies, procedures, and employee handbooks. Investigation protocols should be revised as needed, to conform to any changes an employer makes. Third parties brought in to conduct investigations should be familiar with Board requirements and informed of the employer's rules. A rule that requires confidentiality only while an investigation is pending is most defensible from a legal perspective, but rules that continue to require confidentiality indefinitely may be sustained if the employer demonstrates the need for such requirements.
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if you have any questions about this development.
This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.