Biden NLRB poised to restrict employer confidentiality

The National Labor Relations Board (NLRB) under the Biden administration appears poised to reverse a Trump Board decision. The important underlying issue is whether blanket policies that require confidentiality in personnel investigations violate unionized employees’ right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” a cornerstone guarantee of the National Labor Relations Act (NLRA) embedded in the law’s Section 7.

Confidentiality

This presents a clash in important federal policy. On the one hand, when confronted with allegations of employee wrongdoing, most employers have had a long-standing practice of requiring confidentiality from employees during the ensuing personnel investigations. This protects the privacy of the complainant and respondent as well as the overall integrity of the investigation, which can be hampered by actions by employees or their unions to make private facts public and potentially influence witness statements.

On the other hand, union advocates argue that confidentiality can chill employees’ Section 7 rights by stifling discussion among coworkers and with their union.

The drafters of the NLRA could not have anticipated this clash, leaving the NLRB with the prerogative to plug the gap. Since Board decisions are heavily influenced by the political ebb and flow of presidential appointments and the influence of Democratic and Republican members on federal labor policy, “doctrinal shifts” are inevitable—and the confidentiality issue is a good example of that phenomenon.

NLRB case law