Confused by the NLRB's Ruling on Confidentiality in Investigations?

Learn how to make the case for confidentiality in our upcoming webinar.

Posted by Joe Gerard in on October 11th, 2012

Before you ask an employee to keep the details of a workplace investigation confidential, there’s a few steps you’re going to have to take. At the end of July, the NLRB issued a ruling that sparked a lot of different reactions from the HR community. The NLRB’s decision in the Banner Health System case (Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro, Case 28-CA-023438) stated that the:

Respondent violated Section 8(a)(1) of the Act by including in its confidentiality agreement a prohibition against sharing private employee information such as salaries and discipline.

This ruling means that employees involved in an internal investigation cannot be required to keep the details of the investigation confidential unless the company can prove that confidentiality is necessary to further a legitimate business need.

I don’t know about you, but if I mustered up the courage to report misconduct to my employer, the last thing I want is for the rest of the people in my workplace to be able to talk about it.

What does this mean?

In order to prevent additional lawsuits, employers/investigators will have to make the case for confidentiality when conducting investigations. This means that they will need to document the reasons for requesting confidentiality on a case by case basis and be prepared to defend their decision should it be questioned. The decision for issuing a request for confidentiality will have to be made before asking someone to keep the details of the investigation under wraps.

[isight-ad]Many investigators and HR pros worry that the inability to ask employees to keep an investigation confidential will discourage employees from reporting misconduct and will also hinder the integrity of future investigations.


The NLRB ruling has sparked a lot of controversy and has left a lot of investigators confused, as asking for confidentiality during workplace investigations has been common practice for many years.

To help investigators out, we are hosting a free webinar featuring employment attorney Allison West, Esq, SPHR, on October 18th at 2pm EST. During the webinar, West will talk about:

  • Working through the 4-prong test to prove a legitimate business need for confidentiality
  • Who should decide whether or not confidentiality is necessary for a particular investigation.
  • How to properly document the case for requesting confidentiality
  • Various dilemmas the case creates for investigators
  • Some suggested wording for retainer agreements

Click here to register for the webinar.

Joe Gerard
Joe Gerard

CEO, i-Sight

Spend my days showing off the i-Sight investigative case management software and finding ways to help clients improve their investigations. Usually working with corporate security, HR & employee relations, compliance and legal teams.

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