One of your top workers, Emily Employee, comes to you distraught: She can no longer take Carla Co-Worker’s harassing comments about Emily’s religion. Some of the comments Emily relayed to you sound pretty bad and would result in very negative publicity if they were publicized. No problem, you think, we’ve got a stellar internal investigation policy. We’ll just interview everyone, direct them to keep the investigation confidential, determine whether Carla has been making offensive comments, and discipline employees as outlined in our employee handbook. No one but Emily and Carla will know the difference, right? Not so fast.

The National Labor Relations Act (NLRA) protects employees’ rights to “engage in concerted activities for the purpose of . . . mutual aid or protection.” This protection extends to all employees, including those employed in non-unionized workplaces. This protection includes any concerted activity (two or more employees) connected to the employees’ terms or conditions of employment—even indirectly. The National Labor Relations Board (NLRB), which hears cases on violations of the NLRA, has consistently held that employee discussions of on-going investigations can be protected concerted activity.

As a result, employers violate the NLRA when they put in place blanket confidentiality requirements on internal investigations. Blanket confidentiality requirements prohibit employees from discussing an investigation, regardless of the circumstances surrounding the investigation. Just maintaining a blanket confidentiality requirement is a violation of the NLRA, even if it has never been enforced.

Similarly, confidentiality requirements can be a violation even if they do not include a direct reference to discipline; requesting or suggesting that employees maintain confidentiality is a violation in the same manner that threatening to discipline employees for not maintaining confidentiality is a violation. Finally, it is also a violation to allow employees to discuss internal investigations with one another, but to prevent them from discussing investigations with “other parties.”

Allowable confidentiality restrictions

Employee rights to discuss investigations, however, are not unlimited. Employers may impose confidentiality obligations regarding investigations if a “legitimate business justification,” based on the specific facts surrounding the investigation, outweighs employees’ rights to engage in concerted activity. Policies must be carefully worded, because a “generalized concern with protecting the integrity of [an] investigation” is not a sufficient business justification to require employee confidentiality. Examples of legitimate business justifications that have outweighed employee rights to discuss investigations include: whether any witnesses need protection, particularly in the context of threats of violence; whether evidence is in danger of being destroyed; whether it is likely that testimony will be fabricated; and whether there was a need to prevent a management cover-up.

The general integrity of an investigation, on one end, and threats of violence, on the other, compose opposite ends of the spectrum of potential business justifications for a confidentiality requirement. So how can employers draft confidentiality policies that effectively articulate the employer’s ability to require employee confidentiality in the gray area in between?

A recent NLRB advice memorandum released on April 16, 2013, gives employers language to consider using in their policies. While the memorandum reiterated that “overbroad” confidentiality requirements violate the NLRA, it approved of a portion of an employer’s policy. That portion read:

[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.

The memorandum also states that the employer could add the following language to the policy, and remain in compliance with the NLRA and court decisions:

[Employer] may decide in some circumstances that in order to achieve these objectives, [employees] must maintain the investigation and our role in it in strict confidence. If [employer] reasonably imposes such a requirement and [employees] do not maintain such confidentiality, [employees] may be subject to disciplinary action up to and including immediate termination.

Employers should consider adding this language to their internal investigation policies. Employers should also create a checklist to evaluate the facts surrounding each investigation to determine whether requiring employees to keep an investigation confidential is necessary and reasonable. Prior to requesting confidentiality, employers should create a written record using this checklist to record the specific reasons they believed the need for confidentiality outweighed employees’ rights to discuss the investigation. Having such a written record could be pivotal in convincing the NLRB, if challenged, that the employer reasonably believed a confidentiality requirement was necessary.