A recent National Labor Relations Board decision finding that documents covered by attorney-client privilege do not need to be disclosed in union information requests could increase litigation over privilege claims at the board and affect how employers approach grievance arbitration, experts said.
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Daniel Sobol, a partner at Blank Rome LLP who represents employers, said that in order to take advantage of the shield recognized by the board in the MEA case, employers involving attorneys in investigations will need to make the nature of the relationship obvious from the start. That could go as far as putting together an engagement letter explaining the scope of the attorney's work and the investigation, Sobol said.
"I think you need to really make clear when you retain outside counsel, and when they're conducting the investigation, you need to explicitly say that you're seeking legal advice and you're seeking legal assessment," Sobol said. "And the client has to be clear that it's not merely to do an investigation into a potential grievance."
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"NLRB Privilege Ruling Could Shift Fights over Info Requests," by Tim Ryan was published in Law360 Employment Authority on September 25, 2026.