Employers: What Should You Do When Employees Break Confidentiality Rules?

Confidentiality during workplace investigations is a sensitive issue. Employers want to protect the integrity of the process and encourage honest participation, while employees have legal rights to discuss their working conditions and raise concerns.

Striking the right balance can be challenging, and mishandling it can expose employers to legal risk.

This article explains what the law says, what risks employers face, and best practices for managing confidentiality during investigations.

Why Confidentiality Matters in Workplace Investigations

When an employer investigates a complaint—such as harassment, discrimination, or misconduct—confidentiality is often emphasized.

The reasons are understandable. Confidentiality helps protect the privacy of the parties involved, and prevents retaliation against witnesses or complainants. It also preserves the integrity of evidence and witness statements and reduces the spread of workplace gossip.

But while these goals are important, imposing blanket confidentiality rules can cross legal lines.

Legal Limits on Confidentiality Rules

The EEOC's Position

The Equal Employment Opportunity Commission (EEOC), which enforces federal antidiscrimination laws, has cautioned employers about disciplining employees who talk about ongoing investigations.

According to the EEOC, threatening discipline for discussing a harassment complaint may be considered illegal retaliation. Employees have the right to oppose discrimination and harassment, and talking with coworkers about such issues can be a protected activity.

The EEOC has also warned that overly broad rules could discourage employees from reporting harassment to the EEOC or other outside agencies. If employees fear that any discussion could lead to discipline, they might avoid raising concerns altogether.

The NLRB's Position

The National Labor Relations Board (NLRB), which enforces the right of employees to engage in concerted activity, has also taken a strong stance. The NLRB has found that employers generally cannot prohibit employees from discussing workplace investigations with each other. Employees have a right to talk about the terms and conditions of employment, and this includes discussing investigations.

That said, the NLRB recognizes exceptions. An employer may impose confidentiality if it has a legitimate business justification that outweighs employee rights. For example, protecting witnesses from intimidation or preventing the destruction of evidence might qualify. However, the justification must be specific to the situation, not a blanket rule applied to every case.

Best Practices for Handling Confidentiality

Assess the Impact of Employee Discussions

Not all breaches of confidentiality are equal. Consider whether discussions are causing real harm. For example, if employees are attempting to coordinate their stories or intimidate a complainant, that is a serious issue that may justify action. On the other hand, casual workplace gossip, while frustrating, might not justify discipline.

Tailor Confidentiality Requests

Instead of blanket rules, make confidentiality requests that are specific and justified. For instance, you might explain to a witness that confidentiality is important to protect the privacy of others or to avoid compromising the investigation. Document your reasons if you impose restrictions.

Limit Information Sharing

Employers conducting investigations should take care to disclose only what a witness needs to know. This reduces the risk of unnecessary rumors. Investigators should also model confidentiality by not sharing details beyond what is required.

Improve Investigation Procedures

Practical steps can help reduce breaches of confidentiality:

• Hold interviews in private locations or off-site.
• Move quickly to gather evidence and reach a conclusion.
• Keep records secure and access limited to those who need them.

Next Steps

If employees have broken confidentiality and you are considering discipline, consult with an experienced employment lawyer. A lawyer can help you determine whether confidentiality rules are legally enforceable in your situation, and whether disciplinary action could expose you to legal claims.