NLRB reinstates investigations gag rule

The National Labor Relations Board ruled today that employers may bar employees from discussing internal investigations.

The board’s decision in Apogee Retail LLC overturns a 2015 decision in Banner Estrella Medical Center, which said employees have the right to discuss workplace investigations unless management can prove that doing so would harm the integrity of their efforts.

In a statement, the board said the Obama-era decision “improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent.“

Democratic member Lauren McFerran, whose term expired Monday, wrote that the decision will help employers cover up misconduct.

“The majority now permits American employers to hold gag rules over their workers if the rule is linked to an open investigation of workplace misconduct,” McFerran wrote. “The likely chilling effect on workers — who will feel compelled to choose safe silence over risky speech — is both obvious and alarming.“