Last year the National Labor Relations Board (NLRB) found that a policy requiring employee-witnesses to maintain confidentiality of workplace investigations interfered with employees’ Section 7 rights to engage in protected concerted activity. This decision was issued in a case involving Banner Health System, which had a blanket policy of prohibiting employees from discussing testimony, facts or other issues related to a Company investigation of employee misconduct. The Board decided that blanket policies of confidentiality might interfere with the right of employees to communicate about workplace issues.

In Banner Health, the Board ruled that an employer must determine the need for confidentiality on a case-by-case basis considering such facets as:

Recently, NLRB released an Advice Memorandum that allows some confidentiality under certain conditions. The NLRB’s Division of Advice in Verso Paper provided sample language and clarification of the Board’s position regarding confidentiality in employer workplace investigations. The Verso Paper’s Code of Conduct stated that employees must maintain confidentiality during investigations and violations of the policy would be subject to discipline, up to and including immediate termination.

The Board suggested that the following Employee Conduct Policy language would be lawful:

The Division of Advice provides guidance to NLRB Offices, however, a memorandum the Division issues does not have the force of a Board decision. Nevertheless, given this Verso guidance, employers are probably safe in imposing confidentiality rules on a case-by-case basis when there is a demonstrable need to protect the integrity of the investigation.