Does your employer tell you to not to talk to anyone about an internal investigation? The Company might be violating the law, according to both the Equal Employment Opportunity Commission and the National Labor Relations Board.

The Usual Approach

For years, management lawyers have told their employer-clients to tell employees at the end of an investigatory interview with a statement like: “You are hereby instructed to keep what we discussed here strictly confidential.”

That approach could now land employers in court.

The Equal Employment Opportunity Commission Take

The EEOC recently took issue with an employer who took the typical approach. In a letter to the employer, the EEOC stated: “An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII  rights, and the violation is flagrant not trivial.”

The EEOC found the employer’s policy of keeping all investigations confidential to be “so broad that a reasonable employee could conclude by reading it that she could face discipline or charges for making inquiries to the EEOC for harassment if that harassment is being or has been investigated internally by your organization.”

The Labor Board's Position

The NLRB took a similar position in a recent case. In Banner Health System, the NLRB ruled that policies that bar employees from discussing investigations violates the National Labor Relations Act. The Act prohibits employers from interfering with the right of employees to engage in a wide variety of “concerted activities.” The only exception is if an employer can demonstrate a “legitimate business justification that outweighs employees’ rights.” A “generalized concern with protecting the integrity of its investigations” ain’t enough.

The NLRB provided three instances where the company might be able to justify a confidentiality restriction:

A particular witness needs protection.
Evidence is likely to be destroyed or fabricated.
A “cover-up” is likely to occur.

The typical “thou shall not say anything at all about any aspect of this investigation” approach appears to be dead. The EEOC and NLRB will continue to target employers whose overly broad policies could potentially chill employee willingness to complain about discrimination or unfair labor practices.