Employers conducting internal investigations into employee complaints of workplace wrongs generally seek to keep the information they obtain confidential. The Equal Employment Opportunity Commission’s guidelines to workplace investigations recommend that employers protect confidentiality to the extent possible. After all, employees may fear retaliation when they participate in an investigation. The promise of confidentiality (to the extent practicable) encourages employees to come forward.

Enter the National Labor Relations Board, which in recent years has questioned a number of workplace policies and practices that employers previously took for granted as lawful, and even benign. The NLRB in a series of recent actions has ruled that blanket policies prohibiting employees from discussing information learned or provided in connection with investigations of discrimination or harassment are “unfair labor practices,” and therefore unlawful. As a result, employers must now carefully balance their duty to promptly investigate and correct alleged workplace wrongs with their obligation not to interfere with employees’ rights to engage in concerted activities.

NLRB: Blanket Confidentiality Clause Violates NLRA

Section 7 of the National Labor Relations Act (“NLRA”) grants various rights to employees, including the right to engage in concerted activities such as discussing the conditions of their employment. The NLRA makes it unlawful for employers to interfere with these rights. The NLRB in recent decisions hold that employer attempts to maintain confidentiality during workplace investigations may violate employees’ Section 7 rights.

For example, the NLRB found unlawful some language in an employer’s handbook stating “[i]n cases involving a report of harassment or discrimination, all reasonable efforts will be made to protect the privacy of individuals involved. … Employees who assist in an investigation are required to maintain the confidentiality of all information learned or provided. Violation of confidentiality will result in disciplinary action.” The Board in Security Walls, LLC and Orlando Franco, 356 N.L.R.B. 57 (2011), held the rule could reasonably be read to forbid employees from speaking among themselves or to third parties about such complaints and was therefore overly broad.

In another recent ruling the NLRB decided it was illegal for a human resources consultant to ask employees making complaints to not discuss the matter with their coworkers while the investigation was ongoing. The Board limited its prior decisions holding that an employer could mandate confidentiality where it had a “legitimate business justification.” Now, to maintain confidentiality, an employer must show that its business justification outweighs employees’ Section 7 rights. An employer’s “generalized concern with protecting the integrity of its investigation is insufficient” to make that showing. Rather, employers must show that confidentiality is necessary to ensure: (1) witnesses are not put in danger; (2) evidence is not destroyed; (3) testimony is not fabricated; or (4) a “cover-up” is prevented.

Effects of NLRB Decisions

By replacing the “legitimate business justification” requirement with a more burdensome balancing test, the NLRB has left employers between a rock and a hard place. On the one hand, several laws (for example, Title VII of the Civil Rights Act of 1964) require employers to promptly investigate and correct complaints of workplace wrongs. Employers face liability if they do not conduct a comprehensive investigation and, if necessary, take steps to remedy such wrongs.

Employers and their lawyers generally seek to maintain confidentiality for a variety of reasons. Before an investigation concludes, the employer may wish to protect the accuser or witnesses from possible reprisals. It also is important to protect the reputation of the accused, who may not have violated any policy.

The NLRB’s point is that employees have a right to discuss their working conditions; discrimination and harassment are working conditions. Employers seeking to avoid unfair labor practice charges (which apply to union and non-union employers alike) must change their investigation practices.

Where do Employers Go From Here?

Even under the NLRB’s new rulings, employers may seek confidentiality during workplace investigations. But changes to investigation policies or protocols mandating confidentiality are necessary. Employers should instead state in its policies that it will require confidentiality as required under the circumstances. Before mandating confidentiality, employers must consider each investigation individually, particularly the need for witness protection, evidence preservation, and prevention of cover-ups and fabrications.

Employers must train investigators to assess the need for a confidentiality warning early in the investigation process. Investigators may consider asking complainants and witnesses up front whether they have any concerns about confidentiality and why (for example, employees alleging harassment may need protection). Where confidentiality is necessary, employers should make efforts to limit their confidentiality instructions to information discussed during an interview or to statements provided as part of an investigation. Employers should also make it clear why they are requesting confidentiality and that they are not attempting to interfere with an employee’s right to share his or her concerns with other employees.

Finally, documenting why confidentiality is necessary will help employers justify that decision if it is challenged down the road.