Confidentiality in Investigations – Update

posted in: People, Policies 0

Handling confidentiality during investigations is a moving target while the NRLA is sorted out. The reasons for maintaining confidentiality are clear: maintain privacy for accused and accuser protect witnesses, keep evidence from being destroyed, prevent stories from being synchronized, and prevent cover-ups. The competing interest, which the NRLB takes seriously, is that employees have a right to discuss working conditions, including harassment and discrimination complaints.

Clauses in investigation policies that require confidentiality can be construed as precluding employees from discussing these complaints. In order for confidentiality requirements to be lawful, they must be applied on a case-by-case basis. The employer must be able to demonstrate  a substantial and legitimate business justification in a particular investigation by demonstrating that there is a clear reason to believe that one or more of  the following is true:

  • Witnesses need protection
  • Evidence is in danger of being destroyed
  • Testimony is in danger of being fabricates
  • There is a need to prevent a cover up

The NRLB takes a skeptical view of these justifications, making it a hard hurdle to clear.

Blanket confidentiality clauses in employee manuals, if they appear to cover harassment allegations and investigations, may also be unlawful.


Thanks to Laurence Martin at Felt Martin Frazier and Weldon PC, for a great presentation.

May 2013 Update: Advice Memorandum Issued