The key takeaway here is that:
[T]he Employer cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.
The advice memo scrubs the remainder of the employer's policy because it included a blanket confidentiality provision under threat of termination. Instead, the memo says to try something like this:
[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.So, employers, there's your roadmap. Just one more thing . . . in my post linked above, I noted that the EEOC is also taking aim at confidential investigations. Does the NLRB's advice memo pass EEOC muster? I tell ya, nothin's ever easy.
See also: Jon Hyman's NLRB Offers Further Guidance on Confidential Workplace Investigations; and WinWinHr's Internal Investigations: NLRB Suggests Confidentiality Language.
Image: NLRB seal used in commentary on NLRB. Not official use.