Important information for employers and employees regarding internal workplace investigations
Recent guidance from EEOC and NLRB suggests that it may be a violation of law telling employees to refrain from discussing internal investigations.
The EEOC recently took issue with an employer who took the typical approach. In a letter to the employer, the EEOC stated: “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.” The EEOC found the employer’s policy of keeping all investigations confidential to be “so broad that a reasonable employee could conclude by reading it that she could face discipline or charges for making inquiries to the EEOC for harassment if that harassment is being or has been investigated internally by your organization.”
The NLRB took a similar position in a recent case. In Banner Health System, the NLRB ruled that policies that bar employees from discussing investigations violate Section 7 of the NLRA. Section 7 prohibits employers from interfering with the right of employees to engage in a wide variety of “concerted activities.” The only exception is if an employer can demonstrate a “legitimate business justification that outweighs employees’ Section 7 rights.”
Instead of issuing blanket prohibitions, employers should limit confidentiality requirements to situations where there’s a clear concern about witness safety, evidence loss/fabrication or a cover-up. To be even safer, the instructions should make it clear that they apply only for the duration of the investigation and on company time/property.
