The conflicting views on confidentiality in workplace investigations create a legal dilemma

A conflict between the approaches of the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) regarding the propriety of confidentiality admonitions has put workplace investigators into an untenable situation.

Maintaining confidentiality in workplace investigations (at least to the extent possible) has long been a hallmark of proper investigation procedures. For example, in Roby v. CWI, Inc. d/b/a Camping World, Inc., 579 F.3d 779 (7th Cir. 2009), the US Court of Appeals found an employer’s workplace investigation “reasonable” in part, because “it performed an investigation, instructed interviewees that the information was confidential, [and] fired [an employee] when he breached confidentiality.”

Consistent with this view of confidentiality, the EEOC in its 1999 “Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors” discussed the importance of confidentiality in workplace investigations. On April 29, 2024, the EEOC issued a revised Guidance (the Enforcement Guidance on Harassment in the Workplace) which again stressed the importance of confidentiality in workplace investigations.

Many state courts and administrative agencies followed this approach. For example, an early California case, Silva v. Lucky Food Stores, Inc., 65 Cal. App. 4th 256 (1998) discussed the propriety of the company’s investigation including that the investigator “maintained confidentiality” in the investigation.

And in 2017, the California Civil Rights Department (formerly the Department of Fair Employment and Housing) issued its Harassment Prevention Guide. Here too, the confidentiality of workplace investigations was delineated.

However, the view of the NLRB is entirely different.

After years of going back and forth on confidentiality requirements in workplace investigations, the NLRB’s latest pronouncement came out on Aug. 2, 2023. In Stericycle, Inc. and Teamsters Local 628, 372 NLRB No. 113 (2023), the NLRB determined that it would not consider investigative confidentiality instructions as categorically lawful. Instead, it would separately scrutinize such instructions on their own merits. The NLRB’s concern related to employee rights to discuss terms and conditions of employment.

In other words, the NLRB would not consider confidentiality instructions given during a workplace investigation (even if only for a limited duration, such as until the end of the investigation) to be presumptively lawful. Unfortunately, the NLRB did this without providing any real guidance as to if, and when, confidentiality admonishments would be acceptable.

As a result, employers are left with a difficult choice: either to (1) follow the EEOC Guidance and case law, provide confidentiality admonishments, and (potentially) violate the National Labor Relations Act; or (2) follow the NLRB’s views, not give confidentiality admonishments, and (potentially) violate federal and state discrimination laws.

Hopefully, some guidance about this issue (particularly from the NLRB) will be provided in the future. In the meantime, investigators should discuss with their clients and their client’s counsel the risks and benefits of giving confidentiality admonishments.