Over the years, the breadth and scope of workplace investigation confidentiality rules has been scrutinized and debated. There is no question that some degree of confidentiality is appropriate during many types of workplace investigations, particularly for the duration of the investigation. Confidentiality requirements often protect the interests of both employers and employees.

However, depending upon the nature of the allegations and the breadth of the rules or instructions, restrictions could interfere with employees’ Section 7 rights to engage in “concerted activity” for the “mutual aid or protection of employees” under the National Labor Relations Act (NLRA), 29 U.S.C. Section 157. Conversely, the inability to require an appropriate degree of confidentiality, especially during an investigation, can compromise the investigation’s integrity. It can also result in an increased risk of interference, retaliation, and dissemination of employees’ sensitive personal information. Many employees prefer that their matters be handled with confidentiality.

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