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EEOC’s Joins NLRB Requiring Employers to not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint – Las Vegas Employment Attorney Andre Lagomarsino

Internal investigations of employee complaints are serious business; therefore both the EEOC and the NLRB have taken the stance that employees who participate in a complaint investigation may not discuss the investigation with anyone. Furthermore, employees who violate this warning may be subject to workplace discipline, which can include termination.

Recently, however, the EEOC’s New York office informed an employer that its written policy warning employees who participate in an investigation, that discussing the matter could result in workplace discipline, was written in such a way that it could be a “flagrant violation” of Title VII and itself an adverse employment action. According to the EEOC, the way the policy was written, a reasonable employee could infer that he or she could receive workplace discipline if, after an internal investigation by the employer, the employee pursued over avenues of investigation, including contacting the EEOC. This is not acceptable since an employee’s discussion of his or her complaint “with anyone” is protected opposition.

While this particular EEOC position is not binding on other employers, it could be a reflection of the agency’s increased sensitivity to employer policies and practices that may unreasonably limit or chill employees from discussing workplace concerns.

In Banner Health System, the NLRB held that a blanket policy prohibiting an employee from discussing an ongoing investigation violates section 8(a)(1) of the National Labor Relations Act. Banner Health System, 358 NLRB No. 93 (July 30, 2012). In Banner, an employer’s human resource consultant routinely asked employees, who filed a complaint with the employer, to not discuss the matter with coworkers while the investigation was ongoing. Though an Administrative Law Judge (ALJ) found that the employer’s warning did not violate section 8(a)(1) because the employer had a legitimate reason for making the request for confidentiality, the NLRB overruled the ALJ.

According to the NLRB, “[t]o justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.” Section 7 of the NLRA gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems. Employees have a right to engage in protected concerted activity even where they are not unionized. While an employer would presumably rely on their need to preserve the integrity of the investigation, such a blanket concern is insufficient to justify the requirement for confidentiality said the Board. Instead, an employer must make an individualized analysis and “first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.”

In light of the decision of the EEOC New York office and the NLRB, it is obvious employers must now tread carefully when notifying employees not to discuss complaint matters while an investigation is ongoing. Each situation is different, so standard confidentiality directions may subject employers to liability under the NLRA. An individual assessment of the circumstances is required to show the employer’s legitimate business justification for requiring confidentiality. According to the NLRB, a few considerations that may trump Section 7 rights, include whether:

• Witnesses need protection;
• Evidence is in danger of destruction;
• Testimony is in danger of being fabricated; or • A cover-up needs to be prevented
The Las Vegas law office of Lagomarsino Law did not represent anyone involved in any cases that may be referenced above. This commentary is for educational purposes. If you would like to be represented by an attorney in our Las Vegas office, contact our office for a free confidential case review and receive a response within 24 hours. Call Toll Free 866-414-0400.