It is not uncommon for an employer to mandate that employees who have lodged a formal or informal complaint themselves or have taken part in an investigation of an alleged workplace violation, keep the matter confidential whether during or upon the completion of the investigation. Many employers include a standard confidentiality provision in their company employee handbook to this effect. Further, many employees who are participating in the investigation are flat-out told not to talk about the investigation.

Obviously, employers have several legitimate reasons for desiring confidentiality, including protecting the integrity of the investigation as well as the parties involved. However, there are competing needs from an employee’s perspective that have recently been addressed.

NLRB on Confidentiality

According to the National Labor Relations Board (NLRB) an employer’s confidentiality provision(s) may be unlawful if not carefully crafted and narrowly tailored to at least make an attempt to address each situation specifically.

Under Section 7 of the National Labor Relations Act, an employer may not restrict an employee from engaging in “protected concerted activity”.  Such activity has been interpreted broadly to include discussing the terms and conditions of the employee’s employment either in-person or in social media forums, such as Facebook, Twitter and LinkedIn.

An employer’s strict policy that prohibits employees from engaging in activity that potentially falls under Section 7 (such as discussing the details of an investigation), is against the law. Section 7 is not limited to union employees, which comes as a surprise to many employers.

Legitimate Business Justification

FREE Investigation Report Template

Prepare thorough, consistent investigation reports with our free report template.

Download Template

So what is an employer to do? The NLRB noted that in order for an employer to expect a reasonable amount of confidentiality in its investigations, it must have a “legitimate business justification for the confidentiality expectation.”

Prior to imposing a broad gag order on employees, an employer must engage in a case-by-case analysis to determine if strict confidentiality is absolutely necessary given the specific circumstances of the investigation. The NLRB set out several factors to help an employer make this determination, including, to:

• protect witnesses
• prevent evidence from being destroyed
• prevent testimony from being fabricated
• prevent a cover-up

The previous factors must be weighed against an employee’s right to discuss the investigation of which s/he is a part.

2 Steps Employers Must Take

This shift in the NLRB philosophy can have a serious impact on employers, regardless of size. Employees are beginning to have more and more avenues of communicating with each other both at work and after hours.

Over the years, employers have been counseled to draft employee handbooks and personnel policies that include the confidentiality provisions similar to those discussed above. Now they are being told that their confidentiality provisions may overly restrict their employees.

What employers must do now is:

1. Review their policies regarding confidentiality, investigations, and procedures dealing with employees generally.
2. Ensure that individuals carrying out the company’s policies on the front line are not attempting to “silence” employees when conducting workplace investigations.

Otherwise, the company could be opening itself up to liability.