In a recent ruling, the National Labor Relations Board (“NLRB”) has expressed the view that telling employees that they may not discuss an internal investigation may violate an employee’s Section VII rights.  In Banner Health Systems d/b/a Banner Estrella Medical Center, 358 N.L.R.B No 93 (2012), the NLRB found that a blanket instruction from employers to employees to hold matters discussed in an investigation as confidential would violate Section 8(a)(1) of the National Labor Relations Act.

The ruling follows a plethora of so-called social media cases where the NLRB has directly reproached employers for taking action against employees for their comments against supervisors on social media sites. 

After Banner Health Systems, it appears that the NLRB would only consider confidentiality policies unlawful where limited business needs exist.  The NLRB delineated the following situations as acceptable situations for requiring a confidentiality policy in investigations:

1. A witness in the investigation needs protection.
2. Evidence is in danger of being destroyed.
3. Testimony is in danger of being fabricated.
4. There is a need to prevent a cover-up.

The NLRB’s ruling may leave employees in a quandary.  Certainly, avoiding retaliation is a key factor in the use of confidentiality policies.  By virtue of this ruling, the NLRB has likely placed employers at risk for greater scrutiny from the EEOC as to why the employer did not take more care to avoid a potential retaliation claim in the case of a sexual harassment claim, for example.  Governmental agencies are often unaware and even unconcerned about the requirements and nuances of their sister agencies.  Accordingly, the wieldy HR professional will take appropriate steps to protect themselves. 

We suggest that any written policy regarding the confidentiality of investigations be removed from your records or modified to explain that the employer may, at its own discretion, designate an investigation as confidential based on legitimate business needs.  Consider each case individually and where you believe that one of the conditions above exists, you may implement the policy and tell employees as much.  Confidentiality may still be invoked, but we will need to be more discerning about its use. 

We caution against getting too cute with your modifications.  Should you choose to input a policy of only invoking confidentiality in a harassment setting, for example, I suspect that the NLRB would still call the policy too broad.  As recent cases have shown, the NLRB will likely invalidate any “rule” that inhibits an employee’s right to act for concerted protected activity.  The use of confidentiality policies will have to be limited to cases where an individualized assessment deems it necessary.