She Reported Sexual Harassment. Then She Was Told to Keep Quiet.
In August 2022, a maintenance assistant at a large warehouse retail store did what employers say they want employees to do. She talked with other women at the store about how a male coworker had been treating them, and then she filed an internal sexual harassment complaint.
The next day, the assistant general manager handed her a one-page form to sign: an "Acknowledgement of Confidentiality for Investigations." It said she agreed "to maintain confidentiality regarding this ongoing investigation." It said she hadn't recorded her interview and that recording any conversation without everyone's consent could lead to discipline. And it warned that "any violation of this Acknowledgement may result in disciplinary action up to and including termination."
She wasn't the only one. At least three other women had filed harassment complaints against the same coworker earlier that year, and they, along with the accused, all signed the same form.
Over the next seven months, while the company investigated, managers monitored and documented her conversations with coworkers about the harassment. An HR specialist reminded her how important the form was, told her to talk only with specific managers, and warned that if she was "influencing" other people, the company would need to address it.
In March 2023, a vice president wrote to tell her the investigation was over and the accused harasser no longer worked there. Then he added: "We hope and expect that you will treat the information contained in this letter in the same manner."
Three weeks later, she filed an unfair labor practice charge with the National Labor Relations Board. No union was involved. In May 2025, an NLRB administrative law judge found that the company's confidentiality form and the vice president's letter both violated federal labor law (Case No. 10-CA-316194, JD-38-25).
Can You Tell Employees to Keep a Workplace Investigation Confidential?
Sometimes, but not with a blanket rule. Under current NLRB law, a confidentiality instruction is presumptively unlawful if it would reasonably discourage employees from discussing their working conditions, including harassment complaints and how the employer handled them. To keep it, the employer has to show a legitimate, substantial interest that a narrower instruction couldn't protect. That rule applies to union and nonunion employers alike, and most standard investigation forms don't meet it.
Key Takeaways
- Blanket investigation confidentiality is presumptively unlawful. Under the NLRB's current standard, an employer must justify any restriction and show a narrower one wouldn't work.
- Union status doesn't matter. The NLRA protects nonunion employees who discuss harassment complaints and working conditions with each other. See what the NLRB means for nonunion employers.
- "Keep this confidential" after the investigation closes is its own violation. The judge found the closing letter unlawful even apart from the form.
- Savings clauses don't save vague rules. A line saying employees may still discuss "terms and conditions of employment" wasn't enough.
- Blanket no-recording rules are risky. A rule that bars recording any conversation with management, backed by discipline, was found overbroad.
- The law may shift, but not yet. The Board has signaled it may revisit the standard. Until it does, narrowly drafted instructions are the safe course.
What Did the NLRB Judge Find?
The judge found three violations of Section 8(a)(1) of the National Labor Relations Act. The company argued it was simply protecting "the integrity of its internal investigation." The judge didn't doubt the motive. The problem was how broadly the company wrote and enforced the restrictions.
1. The Confidentiality Provision Was Overbroad
The judge concluded the provision had "a reasonable tendency to chill employees" in exercising their rights. Employees would reasonably read it as preventing them from gathering and sharing information about what happened, asking coworkers for support, or discussing "the employer's response to the complaint, including the outcome of the investigation" (JD-38-25, slip op. at 8).
Two problems stood out:
Scope. The language appeared "to encompass more than just the information employees learned or provided during their interviews" (slip op. at 8).
Duration. Although the form said "this ongoing investigation," the restriction "could reasonably be interpreted as extending beyond the conclusion of the investigation." The form never said employees would be told when the investigation closed, or that they could talk about it afterward (slip op. at 7–8).
2. The Savings Clause Didn't Fix It
The form stated that employees could still communicate "with others about terms and conditions of employment." The company argued that preserved employees' rights. The judge disagreed, finding the clause "too vague and general to adequately advise employees about their broad panoply of rights" (slip op. at 9).
The threat of termination made it worse. Employees were "left to reconcile for themselves" whether a conversation was a permitted discussion of working conditions or a prohibited discussion of the investigation, "under the specter that making the wrong determination could lead to their termination." Quoting long-standing Board precedent, the judge noted that rank-and-file employees "do not generally carry lawbooks to work" (slip op. at 9, quoting Ingram Book Co., 315 NLRB 515 (1994)).
The company's handbook policy, which said confidentiality was "not intended to dissuade employees from engaging in protected concerted activity," didn't help either. It was in a separate document, neither document referred to the other, and no manager mentioned it when the employee signed the form (slip op. at 9).
3. The No-Recording Provision Was Too Broad
The form barred recording "any conversation" without everyone's consent, under threat of termination. The judge found that broad enough to cover any conversation with management, not just the interview. Recording can be protected activity when employees document working conditions or preserve evidence. The company offered no evidence explaining why it needed a total ban rather than something narrower, "such as, for example, prohibiting the sharing of the recording with other potential interviewees while the investigation is ongoing" (slip op. at 10).
4. The Closing Letter Was a Separate Violation
The vice president's request that the employee keep the outcome confidential came after the investigation was over. The judge held that "an employer cannot require confidentiality after the investigation is completed" without evidence that its justifications outweigh the impact on protected activity, and the company offered none. The letter was "an open-ended continuation" of the earlier restrictions (slip op. at 10–12).
The judge added that "regardless of whether the current or prior standard is applied," the form and letter together unlawfully prevented the employee from discussing matters affecting her and her coworkers' working conditions (slip op. at 10).
What Was the Remedy?
The judge ordered the company to stop the practices, rescind the form and the letter, and post a notice to employees at the store, including electronically. The General Counsel asked for a nationwide posting, but the judge denied it because the evidence covered only the one store (slip op. at 12–13).
The decision is a recommended order. The company filed exceptions in June 2025, and the case is pending before the Board.
Why Didn't the Timing Defense Work?
The company argued the charge was filed too late because the employee signed the form more than six months earlier. The judge disagreed: maintaining an unlawful rule is a continuing violation for as long as it stays in effect (slip op. at 10–11). Old forms sitting in investigation files can still create liability.
Does This Apply to Nonunion Employers?
Yes. Section 7 of the NLRA (29 U.S.C. § 157) gives most private-sector employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection," whether or not they have a union. This case shows how that works in practice: the charge came from one employee, and no union was involved.
The NLRB has long held that Section 7 covers employees' right to discuss potential harassment, to ask coworkers to support a complaint, and to talk about how the employer responded. The judge relied on that line of cases, including Fresh & Easy Neighborhood Market, 361 NLRB 151 (2014) (slip op. at 5).
That creates a real tension for employers. Federal and state anti-harassment laws push employers to investigate promptly and protect everyone involved. Labor law limits how much they can ask employees to stay quiet while they do it. The answer isn't to skip confidentiality. It's to make it narrow, temporary and explained.
Who Is Not Protected?
Supervisors and managers are generally excluded from NLRA protection, so confidentiality instructions to them are evaluated differently. Most rank-and-file employees, including the complainant, witnesses and often the accused, are covered.
For more on how the NLRA reaches nonunion workplaces, see fired for complaining: what the NLRB means for nonunion employers and can employees legally share pay information with each other?
How Has the NLRB's Rule on Investigation Confidentiality Changed?
The NLRB's rule has swung back and forth three times in a decade, and it may move again. Here is the history the judge walked through, plus what has happened since, newest first:
| Date | Development | What it means for employers |
|---|---|---|
| Oct. 2026 | Tesla, Inc., 375 NLRB No. 63 | All three Board members said they're open to revisiting Stericycle in a future case. It hasn't been overruled. |
| Feb. 27, 2026 | General Counsel guidance memo | Regions told to focus on core work-rules cases. Enforcement discretion only; the law didn't change. |
| May 5, 2025 | Case No. 10-CA-316194, JD-38-25 | ALJ applies Stericycle to a standard investigation confidentiality form and finds it unlawful. Exceptions pending. |
| Aug. 2023 | Stericycle, Inc., 372 NLRB No. 113 | Overrules Boeing and Apogee. Rules that tend to chill Section 7 activity are presumptively unlawful unless narrowly tailored to a substantial interest. |
| 2020 | Watco Transloading, 369 NLRB No. 93; Alcoa Corp., 370 NLRB No. 107 | Extend Apogee to one-on-one instructions; telling interviewees to keep their interview confidential found lawful. |
| Dec. 2019 | Apogee Retail LLC, 368 NLRB No. 144 | Overrules Banner. Confidentiality rules limited to open investigations are lawful. |
| 2015 | Banner Estrella Medical Center, 362 NLRB 1108 | Employer must show a specific need in each investigation, such as protecting witnesses or preventing a cover-up. |
Sources: Case No. 10-CA-316194, JD-38-25, slip op. at 5–7; Fisher Phillips on the GC's February 2026 memo; NLRB Edge on Tesla.
Under Stericycle, How Are Confidentiality Rules Judged?
The General Counsel must first show the rule has "a reasonable tendency to chill employees," read from the perspective of an employee "economically dependent on the employer," even if a harmless reading is also reasonable. If so, the rule is presumptively unlawful. The employer can still keep it by showing that it "advances a legitimate and substantial business interest" and that a "more narrowly tailored rule" wouldn't work (slip op. at 7, quoting Stericycle).
Will the Rule Change Again?
Probably. Then-Member Marvin Kaplan, who later became Board chairman, dissented in Stericycle and argued that Apogee struck the right balance (slip op. at 7 fn. 5). But until the Board overrules Stericycle, it is binding law, and charges can still be filed against today's forms. Even under Apogee, a confidentiality demand made after the investigation closes would have needed justification. The judge said the closing letter was unlawful under either standard.
How Can Employers Keep Investigations Confidential Without Violating the NLRA?
You can still protect an investigation. The judge's decision is practically a road map for what a lawful instruction needs. Follow these steps:
Decide case by case whether you need confidentiality. Identify the specific risk in this investigation, such as witness intimidation, evidence tampering, coordinated stories or a cover-up, and document it in the file.
Limit it to what employees learned or said in the interview. Don't bar employees from discussing the underlying events, their own experience or their working conditions.
Limit it to the open investigation. Say so expressly, and tell participants when the investigation closes and that the restriction has ended.
Explain why. A short, plain-English reason, such as protecting witnesses or keeping memories independent, helps show a legitimate interest.
Write a specific savings clause. Generic "terms and conditions" language failed here. Say plainly what employees may still do.
Narrow any recording rule. Limit it to the investigative interview, or to sharing recordings with other witnesses while the investigation is open, rather than banning all recordings of management.
Don't add confidentiality at the end. Closing letters should report the outcome without asking the complainant to keep it quiet, unless you have a documented, specific reason.
Train investigators and managers. Monitoring an employee's conversations with coworkers about a harassment complaint, or warning them against "influencing" others, can look like interference.
For the investigation itself, see our guide on how to investigate a harassment complaint.
How Can an Outsourced CHRO Help?
Most employers use investigation forms they inherited or downloaded years ago. CHRO, LLC is an attorney-led fractional HR firm that reviews investigation forms, closing letters and handbook policies under current NLRB law, trains managers and investigators, and conducts or oversees investigations that hold up. Learn more about our employee relations support and Outsourced CHRO services.
Frequently Asked Questions About Workplace Investigation Confidentiality
Can an employer require employees to keep an investigation confidential?
Only in a limited way. Under the NLRB's current Stericycle standard, a confidentiality rule that would reasonably discourage employees from discussing their working conditions is presumptively unlawful. An employer can justify a narrow instruction, limited to what was said in the interview and to the time the investigation is open, if it advances a legitimate and substantial interest that a narrower rule couldn't protect.
Does the NLRA protect employees in nonunion workplaces?
Yes. Section 7 protects most private-sector, non-supervisory employees who act together for mutual aid or protection, whether or not there is a union. Discussing a harassment complaint, seeking coworkers' support and criticizing how management handled it can all be protected.
Can an employer ask a harassment complainant to keep the outcome confidential?
Generally not without a specific, documented reason. In Case No. 10-CA-316194, the judge found a closing letter asking the complainant to keep the outcome confidential unlawful, because the employer offered no justification for an indefinite restriction after the investigation ended.
Does a savings clause make a confidentiality rule lawful?
Not if it's vague. The judge found that a clause preserving employees' right to discuss "terms and conditions of employment" was "too vague and general" to tell employees what they could still discuss, especially with termination as the penalty for guessing wrong.
Can employers ban recording of investigation interviews?
A narrow rule may be defensible, but a blanket ban on recording any conversation with management, backed by discipline, was found overbroad. Recording can be protected when employees document working conditions or preserve evidence. Limit the rule to what the investigation actually requires.
Is the NLRB likely to change this rule?
Possibly. Board members said in October 2026 that they're open to revisiting Stericycle, and the General Counsel has narrowed enforcement priorities. But Stericycle remains binding law until the Board overrules it, so employers should draft for today's standard.
What should employers do with old confidentiality forms?
Retire them. The judge treated maintaining an unlawful form as a continuing violation, so forms in active use or still binding employees can support a charge even if they were signed years ago. Replace them with narrow, explained instructions and train investigators to use them.
Bottom Line
The employer in this case was trying to do the right thing: investigate a serious harassment complaint and protect the people involved. It ended up before the NLRB because its form was too broad, its savings clause was too vague, and its closing letter asked for silence it couldn't justify. Review your investigation forms and closing letters now, before an employee files a charge. Take the Workplace Diagnostic or schedule a consultation with CHRO, LLC.
About CHRO, LLC
CHRO, LLC is an attorney-led fractional HR firm that helps employers investigate workplace complaints without creating new legal exposure. As your Outsourced CHRO, we review investigation forms, closing letters and handbook policies under current NLRB law, conduct or oversee harassment investigations, and provide employee relations and HR compliance support. We also train managers and investigators to protect the integrity of an investigation while respecting employees' rights, in union and nonunion workplaces alike.
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