The NLRB’s recent decision in Banner Health System, 358 NLRB No. 93 (2012) has tongues wagging, and not just in the blogsphere. In a controversial decision, the NLRB struck down an employment policy requiring employee confidentiality during workplace investigations. The Board held that this type of “blanket” policy potentially prevents employees from engaging in protected speech, thus interfering with their Section 7 rights. The Board held that a complaining employee must be allowed to discuss workplace concerns and this right is not outweighed by generalized concerns about the integrity of an investigation. In its decision, the Board addressed the type of employer concerns that might justify a confidentiality policy under the NLRA. In particular, the Board suggested that in order to “minimize the impact on Section 7 rights,” an employer should determine if (1) witnesses needed protection, (2) evidence might be destroyed, (3) testimony might be fabricated, or (4) when necessary to prevent a cover up. The Board stated, however, that Banner Health System’s “blanket approach clearly failed to meet those requirements.” Apparently, employers must make a case-by-case individualized determination before asking employees to keep quiet about an investigation. The EEOC’s position on these policies is decidedly unclear. Law blogs across the country are discussing a “pre-determination” letter sent from the Buffalo, NY office. This letter warned an employer that its policy that employees who participate in internal investigations could be subject to discipline is too broad and thereby unlawful. The EEOC appears to be concerned that broad confidentiality policies will prevent employees from discussing harassment or discrimination with management or even the EEOC during internal investigations. However, this letter is one letter from one office, and we will stay tuned for more EEOC guidance. What this means to you In the meantime, employers should avoid “blanket” confidentiality policies and promptly conduct internal investigations to ensure the integrity of the investigation remains intact.