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Employers Beware: Is EEOC Joining the NLRB to Require that Employers Not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint?

Lorene Schaefer, a mediator, arbitrator and workplace investigator, has reported on the One Mediation blog that by a letter of August 3, 2012 the Buffalo, New York office of the EEOC notified an employer that the employer’s written policy warning employees who participate in an investigation not to discuss the matter and providing that employees who do so may be subject to discipline including termination of employment may be a “flagrant violation” of Title VII and itself an adverse employment action. While the full text of the EEOC’s letter has not been published and the facts in the underlying case are not known, it appears that the case involved complaints of sexual harassment from multiple women.

The employer’s policy, as paraphrased by the EEOC, apparently warned all employees who participate in an internal investigation that they could be disciplined for discussing the matter. In its letter, the EEOC emphasized that an employee’s discussion of their complaints of employment discrimination “with anyone” is protected opposition. Further, the EEOC noted, a reasonable employee could conclude from reading the employer’s policy that she could be disciplined even for pursuing her charge or otherwise contacting the EEOC if the harassment at issue had been subject to an internal investigation by the employer.

The position set out in the letter from the EEOC’s Buffalo office may be limited to the particular policy and circumstances giving rise to the EEOC’s analysis and, in any event, it is not binding on employers generally. Nonetheless, it reflects the government’s increased sensitivity to employer policies and practices that may unreasonably limit or chill employees from discussing workplace concerns, as most glaringly reflected by the NLRB’s recent ruling in Banner Health System, which we discussed here.

So, what’s an employer to do? First, realize that neither the NLRB’s nor the EEOC’s position on confidentiality address the employer’s duty to maintain the confidentiality of an investigation. Indeed, the EEOC enforcement guidance expressly provides that an employer’s anti-harassment policy and complaint procedure should include “assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.” Second, review your policies and re-think your approach to internal investigations, to ensure that you are not, in the name of conducting confidential investigations, unduly restricting an employee’s protected rights under the National Labor Relations Act, Title VII and other laws to complain about workplace conditions or discrimination.

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About this Author

David Barmak, Employment Attorney, Executive Advisor, Mintz Law FIrm
Member / Chair Emeritus, ELB Practice

David is an experienced trial lawyer and trusted advisor to businesses and their executives with a focus on employment law and HR issues. He has litigated hundreds of cases in federal and state courts and arbitrations nationwide. David is devoted to helping clients accomplish their compliance, risk reduction, and employee relations objectives. David has written and lectured extensively on employment law, trial practice, and alternative dispute resolution, and is often quoted in the media.

As a trial lawyer, David has handled hundreds of cases...