You are investigating a claim of workplace discrimination in which an employee has alleged that her supervisor gave a promotion to an under-qualified male employee. You interview the supervisor, complainant, promoted employee and a witness familiar with the relative merits of the candidates. Pursuant to best human resource practices, you instruct all of these individuals to keep the allegation and investigation confidential. You may be shocked to know that you may have just violated the law!

In recent months, the National Labor Relations Board ("Board") has held that standard employer social media policies, "at-will" employment disclaimers and arbitration provisions may all violate the law, even where the employer is non-union. The Board has even launched a webpage advising employees of their rights under federal statutes.

In keeping with this current and disturbing trend, the Board has now held that the common directive to employees to not discuss matters under investigation with co-workers may be unlawful. In Banner Health System d/b/a Banner Estrella Medical Center and James Navarro, Case No. 28-CA-023438 (2012), the Board held that it was impermissible to maintain a "blanket" policy forbidding employees from discussing a matter under investigation with co-workers.

In Banner, an employee refused to follow his supervisor’s instructions, on the basis of health and safety concerns, and thereafter received a "coaching" for insubordination. In connection with the "coaching," the employee complained, and the employer's human relations consultant used a standard "Interview of Complainant Form" to request the employee to not discuss the matter with co-workers while the investigation was ongoing.

The Board held that a "blanket" rule of providing confidentiality directives in connection with internal complaint interviews violates employees’ federal rights. Rather, a prohibition on employee discussion must be supported by a legitimate business justification.

An employer’s "generalized concern with protecting the integrity of its investigation" is too broad, said the Board. Rather, an employer may prohibit employee discussion only if it has a specific need for confidentiality tied to the individual investigation. This must be determined at the beginning of the investigation on a case-by-case basis, which might include, but is not limited to: witness protection; evidence is in danger of being destroyed; testimony is in danger of being fabricated; or a cover-up needs to be prevented.

Employers should recognize the potential conflict of the Board's ruling with the EEOC's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors. The Enforcement Guidance states that an employer's anti-harassment policy should contain "assurance that the employer will protect the confidentiality of harassment complaints to the extent possible . . information about the allegation of harassment should be shared only with those who need to know about it."

If an employer's policy must contain a broad assurance of confidentiality, that would arguably require the employer to tell the alleged harasser and witnesses to maintain secrecy. However, any such directive may conflict with the Board's standard. Further, if information about the allegation of harassment must only be shared with those who need to know about it, this would also arguably require an employer to prohibit sharing of information with co-employees. Again, such a directive may violate the Board's requirement that an employer have a specific legitimate business justification for confidentiality.

Overall, there is clear tension between the NLRB rule of limited confidentiality and the EEOC guidance of maximum possible secrecy. Accordingly, all employers must carefully review their investigation procedures. According to the Board, employers may no longer have a broad rule of confidentiality in all workplace investigations. Further, any confidentiality directives may only be instituted where justified by a legitimate business concern on a specific, individual basis. Of course, the Board law could change as early as next year depending on the results of the presidential election in November. But until then, the Board has now stated the current law, and employers must be aware of it and be prepared to respond in the event an unfair labor practice charge is filed.