After a Costco employee filed a sexual harassment complaint, she and others were required to sign an “Acknowledgement of Confidentiality” form. It prohibited employees from discussing the investigation.
An NLRB Administrative Law Judge disagreed. He ruled that: (1) Blanket confidentiality during investigations unlawfully chills employees’ Section 7 rights to engage in protected concerted activity—unless it’s narrowly tailored and time-limited; and (2) Post-investigation gag orders are also unlawful unless the employer can show a compelling justification.
Here’s my question for the ALJ: Do you understand the real-world implications of the rules you’re making?
Workplace interviews are high-stakes affairs with serious legal consequences for employers. These investigations often hinge on credibility—figuring out who’s telling the truth and who’s not. One of the most effective tools employers have to ensure accurate investigations is preventing employees from discussing the matter in real time. When stories align naturally, that builds trust. When they don’t, red flags go up. But if people are allowed to compare notes before being interviewed, the entire fact-finding process is compromised.
By prohibiting confidentiality during investigations, you’re stripping employers of a key method to assess credibility. This kind of limitation severely hampers the ability to conduct thorough, impartial investigations—and in doing so, undermines efforts to stop the very misconduct we’re supposed to be rooting out: harassment, discrimination, theft, and more.
NLRB, I implore you—consider the real-world consequences of your decisions. Undermining confidentiality in workplace investigations helps no one, including the employees you’re tasked with protecting.
