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Alert: Workplace Investigations, New Issues Surrounding Confidentiality

Businesses routinely conduct investigations into workplace misconduct and other incidents. In most investigations, the individuals interviewed and the person who brought the complaint are directed 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, this practice has been attacked by the government and found to be 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 National Labor Relations Board (“NLRB”) ruled that it was unlawful for an employer to have a policy that prohibits an employee who makes a workplace complaint from discussing the matter with co-workers while the employer investigates the matter. In a 2-1 decision, the NLRB held 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 argument that the policy was a “mere suggestion” did not hold up and was rejected because this policy had a reasonable tendency to coerce employees even though the policy contained no specific threat of discipline if the confidentiality was breached.

The NLRB ruling came in a case where an employee challenged a workplace directive received after the equipment he was using malfunctioned. When he refused his supervisor’s directive on the basis of health and safety concerns, the employee received “coaching” for insubordination. During the coaching by HR, the employee complained that he was being retaliated against for questioning unsafe work procedures. The HR manager reminded the employee of the company’s policy not to discuss the complaint with co-workers while it was being investigated.

Less than a week later, the Buffalo office of the Equal Employment Opportunity Commission (“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

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