Nuts-and-Bolts: “Keep this Confidential…”

In late July, the National Labor Relations Board (NLRB) issued a decision that affected blanket confidentiality policies that many organizations have in place. As this subject pertains to conducting investigations and interviews in the workplace, the NLRB ruled that even “recommending” that an employee refrain from discussing any HR-related investigations and their subsequent conversations and interviews with other employees is unlawful. The group stated that such confidentiality requirements infringes upon an employee’s Section 7 rights for concerted activity.

An employer can still require that an employee keep trade secrets and other legally protected information confidential, but discussing investigations and other goings on with fellow colleagues and coworkers is not something that an employer can prohibit. This decision will have a huge impact on businesses. Very similar to recent decisions by the NLRB relating to social media and even anti-harassment policies, this was a predictable step and ruling.

What’s the solution? How do you protect sensitive subject matter and confidential information while balancing an employee’s Section 7 rights? The first step is to update your confidentiality policy to balance the need for confidentiality without infringing on Section 7 rights. Remove requirements in which employees are required to sign notices indicating their understanding of the confidential nature of the situation. An employer can still control any information they communicate, but there are restrictions as to how the involved employees are permitted from discussing that information.

Be careful when you meet with employees during discussions on how you phrase the need for confidentiality and how you word your requirements for confidentiality in documents.  Note that the NLRB stated that an employer must consider each investigation individually to decide whether confidentiality is required for one or more of the following reasons:

• Protection of Witnesses
• Avoiding the Destruction of Evidence
• Testimony is in Danger of Being Fabricated
• Preventing a Cover-Up

It is recommended that you document your reasoning for confidentiality prior to the investigation. This can even be shared with the interviewee as appropriate. Many are stating this ruling will be overturned as it is in direct conflict with Title VII and the need for protecting against potential retaliation.

At the end of the day, it is all about how you phrase the reasoning for confidentiality. Avoid making your employees sign any confidentiality agreements, and focus on the need for confidentiality rather than placing restrictions on your employees.