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‘Keep this private’ may be unlawful request during internal investigations

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in Employment Law,HR Management,Human Resources

When investigating claims of harassment or misconduct, it’s common to ask employees whom you interview to “keep this information confidential.”

But a new ruling from the National Labor Relations Board (NLRB) says that such a blanket confidentiality rule barring workers from discussing ongoing investigations violates employees’ legal rights unless “legitimate and substantial justification exists” for the rule.

Recent case: The HR director for Banner Heath Systems typically asks workers involved in in-house investigations not to talk about the investigation with co-workers. She made that request of James, who was interviewed as part of an insubordination charge.

James filed a charge with the NLRB, saying this policy was an unfair labor practice that violates Section 7 of the National Labor Relations Act. Section 7 gives employees—in both union and nonunion shops—the right to discuss the terms and conditions of their employment with other employees.

The NLRB sided with James, saying that for a company to justify such a confidentiality request, it must show the existence of a substantial business justification. (Banner Health System, 358 NLRB No. 93)

How to respond? Avoid blanket re­quests for employees to keep investigations confidential. And don’t discipline employees for failing to maintain confidentiality.  

According to the Fisher & Phillips law firm, a better approach would be “to limit such requests to situations where there is a legitimate and demonstrable safety concern, a concern about witness tampering, or a risk of lost evidence.” Even in such instances, the law firm says, “the request should ideally be limited to time (i.e., the duration of the investigation) and scope (i.e., during work time and on company property).”

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