April 24, 2013 - Asked to opine on a provision in an employee Code of Conduct mandating confidentiality in internal investigations, the NLRB’s Office of the General Counsel determined that the rule was unlawfully overbroad because an employer “cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” (Jan. 29, 2013 Advice Memorandum, Verso Paper, Case 30-CA-089350.) Counsel’s office further explained that an employer must “show in each particular situation” and relying on “specific facts” that it has a “legitimate and substantial business justification” for confidentiality that outweighs employees’ Section 7 rights. To that end, Counsel’s office advised that it would consider the following a permissible policy:
"[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. [Employer] may decide in some circumstances that in order to achieve these objectives, [Employees] must maintain the investigation and [their] role in it in strict confidence. If [Employer] reasonably imposes such a requirement and [Employees] do not maintain confidentiality, [they] may be subject to disciplinary action up to and including termination."