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…In this case, telling women who complained of harassment that they were not to tell others about the alleged harassment is enough to constitute harm until Title VII. There does not have to be a separate adverse action. In addition, 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. Assuming the Buffalo office was not acting unilaterally, it appears that the EEOC may be modifying its earlier 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 a 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. The NLRB has suggested that an employer must first determine in each investigation what are the actual concerns: Are there witnesses who need to be protected? Is there evidence in danger of being destroyed? Is there a legitimate danger of testimony being fabricated? Is there a need to prevent a cover-up? As previously noted, a generalized concern for protecting the integrity of an investigation may no longer be a sufficient basis for this type of rule.

So, what’s an employer to do the next time workplace misconduct is reported and an investigation will be conducted? There are a few suggestions:

1. When receiving a complaint from the complainant, continue to advise the complaining person that the investigation will be conducted quickly and with as much confidentiality as possible to ensure its integrity. These assurances are essential to help minimize the risk and fear of retaliation. Be sure to explore any concerns the complaining witness has about confidentiality and document them clearly. Encourage the employee to come back to the investigator with any additional information relating to the complaint. Be sure to get a complete list of names of all employees that the employee believes have information relevant to the complaint. Assure the complainant that all identified persons will be questioned.
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.
5. If this new approach becomes implemented more fully, then it will become even more critical for employers to have on staff, or to retain, trained professionals who can conduct internal investigations in order to complete the required document review and witness interviews as quickly as possible to minimize the risk of witness collusion or the application of improper pressure on employees. Otherwise, employers will have little ability to protect the objectivity and integrity of their investigations.