USA Trends and Developments Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
employment decisions. In re First Energy Corp. No 24-3654 (6th Cir. Oct. 3, 2025). The court empha - sised that the controlling inquiry is the purpose of the investigation, not the later use of the information, and further clarified that limited sharing of non-privileged factual information with non-adversarial third par - ties does not automatically waive privilege. These developments underscore the importance of attor - ney oversight, clear documentation of legal purpose, and consistent use of Upjohn admonitions in internal investigations. Confidentiality and Employee Rights While confidentiality can be critical to the integrity of workplace investigations, overly broad or automatic confidentiality mandates may violate employees’ Sec - tion 7 rights under the National Labor Relations Act (NLRA). Recently, the National Labor Relations Board (NLRB) has issued a number of opinions addressing the appropriateness of confidentiality requirements in workplace investigations, and ultimately placing strong restrictions on such requirements. It is there - fore important for employers to balance maintaining the integrity of the investigation with ensuring employ - ees’ rights and to monitor changes in the law. Confidentiality during an investigation is important for several reasons. It can help to protect the integrity of the investigation by ensuring that no witness is tainted by others, by preventing retaliation against witnesses or complainants, by encouraging truthful and candid employee participation, by safeguarding privacy inter - ests of all parties involved, and by preserving attor - ney–client privilege and protected work product. Section 7 of the NLRA, however, guarantees employ - ees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec - tion”. This provision provides employees protection when speaking with co-workers about workplace issues, and confidentiality rules must balance the employer’s legitimate business justifications in inves - tigating misconduct with employees’ Section 7 rights.
The NLRB has addressed confidentiality requirements in the context of workplace investigations in multiple decisions, frequently modifying and overruling pre - vious decisions. In Banner Estrella Medical Center , 362 NLRB 1108 (2015), the NLRB established that employers cannot impose automatic or blanket con - fidentiality during investigations. Instead, the employ - er must show a legitimate business justification for confidentiality on a case-by-case basis. Acceptable justifications include witness protection, risk of retali - ation, preservation of evidence, and the risk of fab - ricated testimony. In Boeing Co. , 365 NLRB No 154 (2017), the NLRB established a test for facially neutral workplace rules, which identified various categories of rules and specific considerations for each. Yet in Apogee Retail LLC d/b/a Unique Thrift Store , 368 NLRB No 144 (2019), the NLRB overruled Ban‑ ner Estrella , finding that the test established in Boeing Co. should be utilised. Boeing Category 1 rules that require confidentiality only for the duration of an inves - tigation were found legally acceptable. Confidentiality rules that go outside of the duration, however, fell into Boeing Category 2, which requires a determination as to (i) whether the employer has a legitimate justifica - tion for extending confidentiality beyond the investiga - tion, and (ii) whether a justification can overcome the effect of the requirement on an employee’s exercise of NLRA rights. Most recently, in Stericycle, Inc. , 372 NLRB No 113 (2023), the NLRB overruled Boeing Co. and returned the analysis of confidentiality rules to a case-by-case basis in which they are presumed unlawful if they could reasonably be interpreted to infringe upon an employee’s Section 7 rights. To over - come the presumption, an employer must prove that a confidentiality requirement advances a legitimate and substantial business interest and that the employer is unable to achieve that interest with any narrower rule. Confidentiality rules are therefore currently subject to strict standards, which heightens the risk of requir - ing confidentiality during workplace investigations. Employers must therefore continue to avoid over - broad or indefinite restrictions that could infringe on employees’ rights to engage in protected concerted activities, particularly if they attempt to limit confiden - tiality. While there is little clear guidance on specific restrictions employers can place on employees, a
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