Experts differ on the advice they plan to offer clients on how to respond to the National Labor Relations Board's confidentiality ruling.

Suggestions they make include to continue to generally maintain confidentiality; to look at each investigation on a case-by-case basis; to determine confidentiality based on the type of investigation involved; and to instruct workers to maintain confidentiality, but for only a limited period of time.

Jonathan T. Hyman, a partner with Kohrman Jackson & Krantz P.L.L. in Cleveland, said that in advising his clients of the potential risks involved, “I would tend to err on the side of preserving confidentiality in all instances because of the potential liabilities if you don't.”

However, John M. Skonberg, a shareholder with law firm Littler Mendelson P.C. in San Francisco, said: “Employers really need to approach investigations on a case-by-case basis.”

Jonathan C. Fritts, a partner with law firm Morgan Lewis & Bockius L.L.P. in Washington, said, “It's legitimate for an employer to make a judgment” that confidentiality be required in certain categories that present common issues where it can be justified, such as in sexual harassment cases.

Glenn Grant, counsel with law firm Crowell & Moring L.L.P. in Washington, said it may be acceptable to the NLRB for employers to require confidentiality, but only for the duration of the investigation, not for an indefinite period. “I think the board would still find that OK,” he said.

Employers must engage in a balancing act, said Lorene Schaefer, a mediator with One Mediation Inc. in Atlanta, who is a former in-house counsel with General Electric Co.

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“Your policies have to be procedurally fair. They have to protect confidentiality to the extent possible while still recognizing employees have the right to talk to one another in an effort to improve working conditions,” she said.

“Employers need to look at their policies and practices to make sure there is an added step to determine at the very start of an investigation whether a blanket confidentiality admonition is appropriate,” said Christine Liu McLaughlin, a shareholder with law firm Godfrey & Kahn S.C. in Milwaukee. “Undertake that analysis, and gather the facts that support the confidentiality admonishment,” she said.

Renee Inomata, a partner with Burns & Levinson L.L.P. in Boston, said firms should “make sure the people who are in charge with investigating understand that they do need to make an independent assessment of what the business factors are that need to be protected before instructing an employee of the requirement they keep it confidential.”

Write down the reasons why an investigation should be kept confidential and then discuss them with the witnesses interviewed, said Michael J. Underwood, a partner with Porter Wright Morris & Arthur L.L.P. in Columbus, Ohio.

Observers also say the ruling eventually may be overturned, though to their knowledge no appeal on the issue is in the works.