A recent Jones Day article cites a 2-1 decision by the National Labor Relations Board (NLRA), that “Employers who routinely direct employees to not discuss internal investigations should be prepared to demonstrate that confidentiality is necessary to further a legitimate business interest… (Entire Article)”.
Requesting employees not discuss internal investigations is a very common practice among employers. Employer investigators and HR partners routinely make this request to prevent spoliation or minimize gossip in an investigation. However, the recent NRLA decision does not allow broad brushstroke approach for mandatory confidentiality. Now may be the time to review your current investigation procedures, specifically related to this aspect of confidentiality. Your legal team can advise you as to the best way to handle your situation. When you find the need to use this, be prepared to defend it.
Link to 358 NLRB No. 93 Decision HERE
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FULL LINK INFORMATION: Jones Day | NLRB’s 2-1 Decision Finds NLRA Violation for Asking Employees to Refrain From Discussing Ongoing Internal Investigations.
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