Florham Park counsel Bill Horwitz published an article in HR Dive titled “Dealing with requests for confidentiality during internal investigations.” This is the second article on internal investigations Bill has written for the publication.
Bill states that when it comes to requests for confidentiality, a key rule for investigators is to not promise anyone anything. He notes that conducting an investigation sometimes requires an investigator to disclose information that directly or indirectly reveals the source. He also states that if an investigator technically represents the employer, the investigator may expose the employer to liability for failing to take action by not revealing certain knowledge. Lastly, the report at the conclusion of the investigation will include allegations and material information.
He also notes that while an employer may, under certain circumstances, instruct witnesses not to discuss the investigation in the workplace, the National Labor Relations Board has stated that blanket confidentiality requirements may violate the National Labor Relations Act, which protects the rights of employees to engage in concerted activity.