Investigations in the workplace may be conducted in response to a wide variety of situations. When conducting an investigation that involves employee interviews, there are good reasons to be discreet and, when applicable, to maintain confidentiality.

For example, when an employee raises a question about safety, it would be prudent for the company to start an investigation to ensure that it is providing its employees with a safe workplace. Discretion and confidentiality would be very important in this case; most companies would not wish to alarm employees about security if, in fact, the workplace is sufficiently secure.

Maintaining confidentiality is also important in encouraging employees to cooperate in an investigation, as they may not be forthcoming if they believe that co-workers will learn of their discussions with the investigator. Also, if the investigation becomes widely known, interviews may yield second-hand information and lead to cover-ups and evidence tampering, resulting in unreliable findings and misguided courses of action. To minimize these issues, most employers request, and often require, that employees who are interviewed as part of an investigation refrain from discussing the investigation with others.

Discretion and confidentiality are also important in encouraging employees to cooperate in an investigation, as they may not be forthcoming if they believe that co-workers will learn of their discussions with the investigator. Also, if the investigation becomes widely known, interviews may yield second-hand information and lead to cover-ups and evidence tampering, resulting in unreliable findings and misguided courses of action. To minimize these issues, most employers request, and often require, that employees who are interviewed refrain from discussing the investigation with others.

The widespread practice of keeping investigations confidential has come under scrutiny by the National Labor Relations Board (NLRB). The NLRB is charged with enforcing employee rights under federal law, even in non-union workplaces, including the right of employees under federal labor law to discuss wages, hours or other working conditions with other employees. To justify workplace policies or rules that may “chill” this right, the employer must be able to demonstrate a legitimate business justification that outweighs employees’ rights...