Requiring Confidentiality in Investigations Could Lead to Legal Trouble

The NLRB and the EEOC have both recently attacked employer confidentiality requirements.

Workplace complaints and investigations can polarize a workplace. To minimize gossip and bad feelings -- and to protect the integrity of the investigation -- many employers require the employees they interview to keep the investigation confidential. This makes good sense, particularly if the investigator is concerned that an employee accused of wrongdoing may try to destroy evidence, pressure other employees to change their stories, or retaliate against the employee who complained.

But requiring confidentiality could also lead to trouble. In the past few months, two government agencies have come out against broad confidentiality requirements in workplace investigations. The National Labor Relations Board (NLRB) issued an opinion stating that a broad gag rule on employees who participate in an investigation violates the employees' right to discuss the terms and conditions of their employment. And, the Equal Employment Opportunity Commission (EEOC) informed an employer that disciplining (or threatening to discipline) employees for discussing a harassment complaint could constitute illegal retaliation. (For more details on these opinions, check out our blog post Confidentiality of Workplace Investigations.)

This issue is evolving in real time, and it isn't currently clear what employers may or may not ask of employees involved in an investigation. The NLRB opinion clarified that an employer who has a specific factual basis for believing that a confidentiality requirement is necessary (such as a concern about destruction of evidence) might still be justified in imposing such a requirement. However, a blanket confidentiality requirement applied in every investigation goes too far, under these new interpretations. And, it isn't clear how much proof of potential harm to the investigation an employer would need before requiring confidentiality.

What does seem clear, at least for now: Employers should not discipline employees who fail to maintain confidentiality, nor should they threaten to do so. If you have confidentiality concerns regarding a workplace investigation, consider consulting with a lawyer to find out the latest developments.