News & Insights

Employers May Require Confidentiality In Workplace Investigations

The National Labor Relations Board (“NLRB”) ruled that an employer may now require confidentiality from employees involved in open workplace investigations.  This resolves a conflict between the NLRB and the Equal Employment Opportunity Commission (“EEOC”) and provides clarity for employers.

In 2015, the NLRB reversed precedent and held that employers must determine whether imposing confidentiality during any particular workplace investigation infringed on employee’s rights under the National Labor Relations Act (“NLRA”) on a case-by-case basis. In contrast, the EEOC recommended blanket confidentiality rules during workplace investigations. This put employers in the position of choosing which guidance to follow.

Now, the NLRB found that investigative confidentiality rules which are limited to the duration of the investigation do not require engaging in a case-by-case balancing of employer versus employee interest.  The NLRB found that confidentiality rules do not broadly prohibit employees from discussing discipline or incidents which could result in discipline. Instead, they narrowly require that participating employees not discuss investigations of incidents or interviews conducted during the course of the investigation. However, if a confidentiality rule regarding investigations is not specifically limited to the duration of the investigation, then the NLRB requires a case-by-case balancing of employer and employee interests.

Employers should review their handbooks and other employment policies regarding workplace investigations. The NLRB is clear that confidentiality during investigations will only be presumptively lawful during an open investigation.  Moreover, employer policies may only require confidentiality from participants in the investigation and may not prohibit all employees from discussing the incidents upon which the investigation is based.