Article by Hanson & Bridgett LLP

An employer has an anti-harassment policy. The policy states that all complaints will be investigated in a discreet manner and disclosed on a need-to-know basis. Each person interviewed is asked not to discuss the investigation with others while the investigation is pending. Each interviewee also is reminded that the employer's confidentiality policy prohibits the sharing of another employee's private information.

Straightforward and appropriately tailored, right? The NLRB and EEOC don't think so.

In Banner Health System, 193 LRRM 1161 (July 30, 2012), the National Labor Relations Board ("NLRB") ruled that asking an employee not to talk to other employees about a pending investigation is a violation of employees' Section 8(1)(a) and Section 7 rights to engage in concerted activity.

There, a non-union employee disagreed with a decision by his supervisor to use an alternative equipment sterilization method when the usual method was unavailable. He voiced his concern to other supervisors and did not sterilize equipment that day. The following day, he spoke with co-workers and voiced his concerns to them about the procedure. He then reported the issue to the company's human resources consultant because he said he was afraid he would be fired.

As part of her investigation, and consistent with company policy, the consultant asked the employee not to discuss the matter with coworkers while the investigation was on-going. The employee immediately filed a charge with the NLRB and the NLRB issued a complaint.

An administrative law judge found the employer's request appropriate, holding it was justified by a concern for protecting the integrity of the investigation. The NLRB reversed the decision in a 2-1 vote.

"To 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." The majority rejected the employer's "generalized concern" for protecting the integrity of its investigation. Instead it required the employer to "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." The NLRB also found that the confidentiality policy language violated 8(1)(a) of the Act.

The NLRB is not alone. The Equal Employment Opportunity Commission ("EEOC") increasingly is asserting that an employer's practice of asking complainants and witnesses not to speak with co-workers about a pending investigation constitutes retaliation because it "chills" the ability of employees to engage in mutual aid and protection.

In a recent letter sent from an EEOC field office, an employer was found to have taken an adverse employment action by telling women who complained of harassment that they were not to discuss the on-going internal investigation into their claims. That policy was so broad, according to the field office, that a "reasonable employee" could conclude that she or he would be disciplined for making inquiries to the EEOC while the internal investigation was pending.

Notably absent from these discussions is the chilling effect the lack of confidentiality could have on the reporting of incidents, particularly when they involve unlawful harassment. It remains to be seen how and to what extent courts will balance the potential conflict between protecting concerted activity rights and enabling employers to fulfill their affirmative obligation to prevent and eliminate harassment in the workplace.

In the meantime, consider the following:

• Ask Don't Tell.
  Modify any policy or procedure that requires employees not to talk about a pending investigation. Ask the complainant his or her feelings about the investigation being public. Tell all involved it would be helpful if there were not discussions about the dispute's facts outside the investigation process. Encourage witnesses not to "compare notes," so that others' memories are not inadvertently altered by the discussion. Request that everyone respect the process to protect the integrity of the particular investigation.
• Document The Individualized Assessment.
  Make sure you document the specific necessity for confidentiality. In a disciplinary situation similar to the Banner Health System case, it may make sense not to stress confidentiality. In some harassment cases, it may be imperative. Is there a danger of information being destroyed or covered up? Is there a need to protect the complainant? The accused? Is there a risk that discussion of the investigation would create workplace management issues, such as a potential change in personnel that would cause employees stress?
• Create Exception to Employee Privacy.
  If you have a confidentiality policy or require employees to sign confidentiality agreements, review them. If they prohibit disclosure of another employee's private information without exception, consider adding "unless that employee gives permission." This will undercut any argument that you intend to prevent employees from discussing their pay, bonuses or disciplinary history amongst themselves. These subjects cannot be prohibited under California law.

For more information, please contact:

Sarah Mott
Counsel

Mike Moye
Partner, Section Head

Sandra Rappaport
Partner