Question:  I just completed a workplace investigation. Unfortunately during the investigation there was a lot of discussion and gossip about the investigation, which had a negative impact on the investigation and my employees.  I am considering implementing a policy that prohibits employees from discussing workplace investigations with anyone other than the investigator, and establishes disciplinary action for violations.  Is this permissible?

Answer:  California law requires employers to promptly investigate employee claims of unlawful workplace harassment, discrimination, and other employee misconduct.  Employers are required to keep such investigations confidential to the extent possible.  Most workplace investigators will tell you that employees feel more comfortable disclosing truthful information when they know their statements are confidential.  Thus it would seem that a policy like the one you propose would be appropriate.

However, in recent years the National Labor Relations Board (the “Board”) has ruled that blanket confidentiality policies that prohibit employees from discussing investigations of employee misconduct act to “chill” employees’ rights under Section 7 of the National Labor Relations Act (the “Act”).  Section 7 of the Act applies to union and non-union employees and provides employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”  In its 2015 Banner Estrella opinion, the Board found that mandatory confidentiality policies and instructions restricted employees’ exercise of their Section 7 rights, and placed the burden on the employer to demonstrate, on a case-by-case basis, that the need for confidentiality outweighed employees’ Section 7 rights.

On December 16, 2019 the Board issued a decision in Apogee Retail LLC d/b/a Unique Thrift Store, stating the rule in Banner Estrella was “deficient” and was overruled.  In Apogee Retail, an employer maintained two confidentiality rules regarding workplace investigations.  The first rule required employees to “cooperate fully in investigations and answer any questions truthfully and to the best of their ability,” and that both reporting persons and interviewees were “expected to maintain confidentiality.”  The second rule provided for disciplinary action when employees engaged in unauthorized discussions with other employees about the investigations.

The Apogee Retail opinion states that rules requiring confidentiality during open, active workplace investigations are presumptively lawful.  However, confidentiality policies that are not limited on their face to open investigations, i.e., apply post-investigation, require a case-by-case analysis of their impact on employees’ Section 7 rights.  This decision is ultimately a win for employers.  It is important to keep workplace investigations confidential.  Doing so allows the employer greater access to information by minimizing employee fear of reprisal from coworkers for participating in the investigation, and makes it easier to maintain the integrity of a workplace investigation.

So what does the Board’s decision mean for your proposed policy? The Apogee Retail ruling means your policy is likely lawful, as long as your confidentiality rules only apply during open and active workplace investigations.    However, if you intend to enforce the confidentiality policy after the close of an investigation, you will need to analyze each investigation and be prepared to prove that the legitimate business reasons for requiring confidentiality post-investigation outweigh any adverse impact on employees’ Section 7 rights to discuss their wages, hours and working conditions.