During the investigation of a workplace complaint, many employers have a blanket policy that all employee witnesses maintain strict confidentiality regarding the ongoing investigation and underlying allegations. This type of confidentiality policy may seem like common sense, but in fact it can be a common mistake. Earlier this year, the National Labor Relations Board (NLRB) issued an Advice Memorandum cautioning that such blanket policies chill protected speech under Section 7 of the National Labor Relations Act. Since all of President Obama’s nominations to the NLRB have been confirmed, it is anticipated that enforcement against this type of policy will increase.
Requiring confidentiality during on ongoing investigation must be evaluated and determined on a case-by-case basis. If an employer is going to require that all involved employees maintain confidentiality regarding the investigation, it must have a legitimate business justification for doing so and such justifications should be documented.