Employers certainly have legitimate business justifications for asking their employees to keep internal investigations confidential. These justifications include protecting witnesses, victims and the accused workers, preventing the spreading of baseless rumors, ensuring the integrity of the investigation, and encouraging employees with complaints and information to come forward.

Moreover, many state and federal agencies have required employers to maintain the confidentiality of certain information. For example, the Equal Employment Opportunity Commission has stated that employers must “protect the confidentiality of harassment complaints to the extent possible” and should “make [this commitment to confidentiality] clear to employees.”

Nevertheless, an administrative law judge in a matter involving The Boeing Co. recently applied, albeit reluctantly, the National Labor Relations Board’s controversial rule prohibiting an employer from even asking employees making a complaint not to discuss the matter with their co-workers. See The Boeing Co. , JD(SF)-34-13 (July 26, 2013).

In 2011, the NLRB in Hyundai America Shipping Agency, 357 NLRB No. 80, held that an employer’s routine instruction to employees not to talk about matters under investigation, without any consideration of whether confidentiality was truly necessary to prevent corruption of the investigation, was unlawful. In 2012, Banner Estrella Medical Center, 358 NLRB No. 93, held that an employer’s practice of even asking employees making a complaint not to discuss the matter with their co-workers while the employer’s investigation was ongoing was unlawful.

Both of these cases are currently on appeal before the U.S. Court of Appeals for the D.C. Circuit, where they are held in abeyance in light of the pending Noel Canning case at the U.S. Supreme Court. The Canning case centers on the D.C. Circuit’s decision invalidating President Barack Obama’s recess appointments to the NLRB.

In the Boeing case, the company disciplined an unrepresented employee for communicating with co-workers about a recently completed human resources investigation into that employee’s allegations against her supervisor.

The employer asserted that the employee violated the confidentiality notice she signed during the investigation that specifically “directed” witnesses not to discuss the case with any employees other than the investigators. The employer acknowledged that this notice was “effectively a rule of conduct.”

About two months later, after the employee had filed an unfair labor practice charge alleging that her discipline was unlawful, the employer rescinded the discipline and replaced the confidentiality notice with a revised notice that instead “recommended” that employee witnesses refrain from discussing the case with other employees.

An NLRB complaint nevertheless issued, alleging that the original and revised confidentiality notices, as well as the employee discipline, were unlawful, and that the employer had failed to adequately repudiate the unlawful discipline.

Administrative Law Judge Jeffrey Wedekind acknowledged reservations about the extant board law in this area, but concluded he had no choice but to follow board precedent unless and until it is reversed. He found that such “blanket” confidentiality directives impermissibly infringed on the statutory right of employees to discuss their terms and conditions of employment among themselves and otherwise engage in protected concerted activity.

Wedekind relied upon Hyundai America and Banner Estrella, and he rejected Boeing’s arguments. The company’s first argument was that its interest in keeping every ongoing human resources investigation confidential — to ensure the integrity of investigations, to prevent workplace retaliation for participating in investigations, and to foster an environment where employees will readily report issues — outweighs the employee interest in discussing ongoing HR investigations. The second argument was that it would be impractical for the employer to conduct a separate evaluation in each HR investigation to determine whether its need for confidentiality outweighs the employee witness’ statutory rights.

Thus, the judge found that the employer’s routine use of the original confidentiality notice to prohibit employee witnesses from discussing ongoing HR investigations with other employees violated Section 8(a)(1) of the National Labor Relations Act.

As to the revised confidentiality notice, which merely “recommended” that employee witnesses refrain from discussing the case with co-workers, the judge found that this language also was unlawful, citing Radisson Plaza Minneapolis, 307 NLRB 94 (1992), enf’d. 987 F.2d 1376 (8th Cir. 1992). In that case, the board found a handbook statement that employees “shouldn’t” discuss their salary was unlawful because it had “a reasonable tendency to coerce employees.

In 1989, Heck’s Inc., 293 NLRB 1111, reached the same conclusion with respect to an employer’s “request” that employees not discuss their salary. In 2012, Fresenius USA Mfg., 358 NLRB 138, likewise held that a violation under the circumstances even though the employer said only that it “would appreciate” and “prefer” the employee not talk about the investigation. And NLRB v. Koronis Parts, 927 F. Supp. 1208 (D. Minn.) in 1996 granted the board’s request for an interim injunction requiring the employer to revoke the handbook provision that “asked” employees not to discuss their wages with other employees.

In the Boeing case, Wedekind reasoned first that the recommendation should be treated as a request; second, that the revised notice clearly communicated the employer’s desire for confidentiality; third, that the employer communicated to employees that its confidentiality concerns should be taken seriously because it asked employees to actually sign the revised notice; and fourth, that nothing in the revised notice could reasonably be interpreted as assuring employees that they are nevertheless “free” to disregard the employer’s recommendation-request and discuss the case if they choose.

Thus, he found that the revised confidentiality notice in the particular circumstances likewise violated Section 8(a)(1) because it had “a reasonable tendency to chill employees from exercising their statutory rights.” Moreover, Wedekind found that the employer’s discipline, pursuant to the unlawfully broad rule, was unlawful and that the employer did not adequately repudiate the unlawful discipline for three reasons. First, because the discipline was not rescinded until seven weeks after it was issued; second, because the employer continued to require employee witnesses in HR investigations to sign a revised confidentiality notice that was unlawful; and third, because the employer never provided assurances that it would not interfere with employee statutory rights in the future.

The Boeing case is currently pending before the board, which will have the opportunity to review Hyundai America and Banner Estrella and its holding that an employer’s mere suggestion of confidentiality during investigations is unlawful. However, given that the current board is still made up of three Democratic appointees, Boeing, as well as the Hyundai America and Banner Estrella rulings, is likely to be affirmed.

Affirmance, in turn, will set the stage for review by a circuit appeals court, which very well may give more weight to the employer interests in ensuring witness safety, truthful interviews and the overall integrity of internal investigations, as well as to the EEOC’s guidance to employers regarding confidentiality.

In the meantime, employers’ confidentiality policies to comply with the rules of the current board generally must not prohibit all employee discussions, but instead may only, at most, take into account a particular need for confidentiality on an individualized, case-by-case basis. Employers desiring to comply with the current board law in this area would do well to apply their rules only when the investigation presents specific facts giving rise to a legitimate and substantiated justification for confidentiality.

Kenneth R. Dolin is a labor and employment partner in Seyfarth Shaw’s Chicago office and a fellow in the College of Labor and Employment Lawyers. He focuses his practice on representing management and has experience in National Labor Relations Board matters, collective bargaining, arbitrations, strikes and lockouts.