In reflecting on the proper role of confidentiality in workplace investigations following the Banner Estrella Medical Center NLRB decision, I am reminded of the fundamental principle all medical students are taught – “First, do no harm.”  This principle is a reminder to avoid making something worse with your medical intervention – especially when the intervention carries an obvious risk of harm but a less certain chance of a benefit.

In the context of investigations into alleged workplace misconduct, in particular into allegations of sexual harassment, the complaining employee often wants confidentiality.  Indeed, the EEOC has identified confidentiality as an “important element” of a harassment complaint procedure.

In Banner Estrella Medical Center, the NLRB reminded employers that they should not, in the name of conducting confidential investigations, unduly restrict an employee’s protected rights under the NLRA (as well as Title VII and other laws) to talk with each other about workplace conditions and job-related problems.  Unfortunately, the decision provided only limited guidance on how to decide when and to whom confidentiality instructions are appropriate.  The result is that employers and their employees who often want investigations to be confidential are, in some ways, left worse off in the wake of the NLRB’s “intervention.”

Regardless of what side of the debate you are on as it relates to the proper role of confidentiality in investigations, I think everyone can agree that there is no easy bright line rule on this one.  What employers and employees need is thoughtful guidance on this topic from both the NLRB and the EEOC.  In fact, what I’d like to see the two agencies do is work together to provide joint guidance on this topic given the complexity of workplace investigations and the employment laws.

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