Over the years, attorneys have routinely counseled their clients to assure complainants of confidentiality when investigations workplace misconduct and other incidents. In most cases, the investigator directs the individuals interviewed and the person who brought the complaint not to discuss the investigation with others. Plenty of good reasons exist for this practice, which many HR professionals believe is a “best practice.”
In two very recent actions, however, the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) have attacked this practice and indicated it is unlawful. While no court has upheld this challenge to the standard confidentiality approach to workplace investigations, these recent actions suggest that employers should evaluate their current practices going forward.
On July 30, 2012, the NLRB ruled that a blanket rule requiring confidentiality in connection with internal investigations violates the right of employees to “engage in protected concerted activity” under Section 7 of the National Labor Relations Act (NLRA). The NLRB noted that a “generalized concern with protecting the integrity of its investigation” was too flimsy a basis to outweigh the employees’ rights under the NLRA. The NLRB believes that this policy of confidentiality had a reasonable tendency to coerce employees even though the policy contained no specific threat of discipline if the confidentiality was breached.
Less than a week later, the Buffalo office of the EEOC issued a warning letter to an employer that its policy of prohibiting workers from discussing an ongoing internal investigation was unlawful. In this letter, which came from a field office, the EEOC said:
An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant,” not trivial … your written policy is so broad that a reasonable employee could conclude from reading it that she could face discipline for making inquiries to the EEOC about harassment if that harassment is being or has been investigated internally.
While this notice from an EEOC office is not binding precedent, it does raise a serious concern. It appears that the EEOC may be modifying its long standing Enforcement Guidance which addressed the Vicarious Employer Liability for Unlawful Harassment (EEOC No. 915.002, June 18, 1999) which specifically requires confidentiality to the maximum extent possible when conducting investigations into claims of harassment.
However, nothing in either of these recent Administrative actions changes an employer’s duty to protect employees who make complaints from suffering retaliatory acts, and without applying confidentiality rule the employer could face a nearly impossible task. In both actions, the federal government is requiring employers to take a more nuanced and case-specific approach to confidentiality during internal investigations.
So, what’s an employer to do the next time workplace misconduct is reported and an investigation will be conducted? These are a few suggestions:
(1) When receiving a complaint, continue to advise the complainant person that the investigation will be conducted quickly and with as much confidentiality as possible to ensure its integrity. Be sure to explore any concerns the complaining witness has about confidentiality and document them clearly.
(2) Continue to advise witnesses who are supervisors and executives that they must treat the investigation and the matter being investigated as confidential as they are not covered by the NLRA, and these are the persons whose positions give them the ability to create real problems in terms of potential acts of retaliation.
(3) Review all forms and policies currently being used to ensure that the language does not contain a blanket prohibition against any and all discussions with co-workers during an investigation, and to ensure that any discipline associated with the policy is properly nuanced. If problematic language exists, consider modification to ameliorate these concerns.
(4) Consider documenting the specific concerns and reasons for a confidentiality directive to be used during an investigation as part of the investigative file.
