Warning About Confidentiality During Workplace Investigations


by Aaron Clark

Clark, Aaron
aclark@mcgrathnorth.com
(402) 341-3070

One of the first steps to addressing harassment and discrimination in the workplace is to adopt a policy and complaint procedure. Having an effective policy can provide an affirmative defense to harassment claims. According to the Equal Employment Opportunity Commission (EEOC), an anti-harassment policy and complaint procedure should contain, at a minimum:

  • A clear explanation of the prohibited conduct;
  • Assurance that employees who make complaints or provide information relating to a complaint are protected against retaliation;
  • A clearly described complaint process that provides reasonable avenues to complain about discrimination and harassment;
  • Assurance that the employer will protect confidentiality of harassment complaints to the extent possible;
  • A complaint process that provides a prompt, thorough, and impartial investigation; and
  • Assurance that the employer will take immediate and appropriate corrective action if it determines that harassment has occurred.

If your policy does not include these terms, it may be rejected as an affirmative defense. As noted above, one of the components of the policy requires the employer to maintain confidentiality.

Confidentiality insures that employees will feel comfortable reporting issues of harassment and discrimination and further promotes the integrity of the investigation.

Although the EEOC appears to require confidentiality as part of the investigation, at least one employer has been chastised by the EEOC for attempting to enforce confidentiality during a workplace investigation. In August 2012, an EEOC office in New York forwarded a letter to an employer stating that it was unlawful for the employer to try to stop an employee from talking with others about alleged workplace discrimination. The employer had a written policy warning employees who participated in an internal harassment investigation that they could be disciplined or fired for discussing the matter. The EEOC asserted that an employee’s discussion with others – including the EEOC, union officials, newspapers, management and other employees, constituted protected conduct and any attempt by the employer to keep an employee quiet about alleged discrimination and harassment would be considered a “flagrant” violation of Title VII.

The National Labor Relations Board (NLRB) has also addressed confidentiality during a workplace investigation. In July 2012, the NLRB found that an employer’s practice of asking employees to refrain from discussing complaints with other employees violated Section 7 rights under the National Labor Relations Act. Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012). Section 7 of the Act protects an employee’s right to engage in protected concerted activity and discuss the terms and conditions of employment with coworkers. The NLRB has consistently held that employment rules or policies which prohibit or significantly restrict Section 7 activities are unlawful.

In Banner Estrella, the NLRB did recognize that confidentiality may be appropriate in some circumstances; however, an employer’s “generalized concern with protecting the integrity of its investigation is insufficient to outweigh employees’ Section 7 rights.” The NLRB stated that confidentiality expectations must be reviewed on a case-by-case basis and the employer should consider whether it is necessary to: (1) protect witnesses; (2) prevent evidence from being destroyed; (3) prevent testimony from being fabricated; or (4) prevent a cover up. In other words, an unfair labor practice may be found unless the employer can show that confidentiality is necessary for one of these reasons.

What does this mean for employers:

  • If an employee reports discrimination and harassment in the workplace and chooses to advise other employees regarding his or her complaint, an employer should think carefully before imposing any discipline. Such discipline could be construed as retaliation under Title VII or a violation of Section 7 of the National Labor Relations Act.
  • It will be difficult for the EEOC to claim that an employer’s enforcement of confidentiality during a workplace investigation constitutes retaliation since the EEOC clearly requires confidentiality as part of an employer’s complaint procedure. In any event, an employer seeking to impose discipline should insure that confidentiality is necessary for one of the reasons set forth in the Banner Estrella decision. During investigatory interviews, employees should be advised of the confidentiality requirement and instructed why confidentiality is necessary.
  • When conducting a workplace investigation and conducting interviews, an employer can enforce confidentiality with respect to the questions asked of employees during interviews as well as the scope of the company’s investigation. Confidentiality regarding these matters should not invoke concerns of retaliation or violation of the National Labor Relations Act.

Should you need any assistance regarding workplace investigations or the enforcement of confidentiality restrictions, please contact a member of the McGrath North Labor and Employment Group.

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