Confidentiality policies: The NLRB weighs in

When you do an internal investigation of, say, a harassment complaint, you’d like the participants to keep as mum as possible.

You don’t want anybody intimidating witnesses or trying to get people to change their stories. Nor do you want to sully people’s reputations unnecessarily.

A clash of rights
But as the National Labor Relations Board reminded us last year in its Board Decision in the Banner Health case, your legitimate confidentiality concerns may run up against the equally legitimate rights of employees to discuss working conditions.

Now, though, the NLRB has helpfully put in writing what you can and can’t say in policies designed to ensure the confidentiality of investigations.

No blanket threats
In a recent Advice Response Memo, the NRLB’s General Counsel said that policy can state an employer’s interest in protecting confidentiality, as well as employees’ duty to cooperate. What policy cannot do, the NLRB said, is make a blanket threat of termination for any breach of confidentiality under any circumstance.

Instead, policy should state that the employer may sometimes find it necessary to impose confidentiality, and if employees don’t comply in such cases, they can be subject to termination.

See: https://www.nlrb.gov/case/30-CA-089350