HR News & Trends, Legal Issues

Workplace Investigations: Here’s Why Keeping Them Secret May be Unlawful

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Do you tell employees to refrain from discussing internal investigations? You might be violating the law, according to both the EEOC and the NLRB.

The typical approach

For years, employment lawyers have advised their clients to conclude investigatory interviews with a statement like, “You are hereby instructed to keep what we discussed strictly confidential.”

That approach could now land you in court.

The EEOC’s take

The Equal Employment Opportunity Commission 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’s take

The National Labor Relations Board 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 National Labor Relations Act. 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.” A “generalized concern with protecting the integrity of its investigations” ain’t enough.

The NLRB provided three instances where an employer might be able to justify a confidentiality restriction:

  • A particular witness needs protection.
  • Evidence is likely to be destroyed or fabricated.
  • A “cover-up” is likely to occur.

What should employers do now?

The typical “thou shall not say anything at all about any aspect of this investigation” approach appears to be dead. The EEOC and NLRB will continue to target employers whose overly broad policies could potentially chill employee willingness to complain about discrimination or unfair labor practices.

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.

This was originally published on Manpower Group’s Employment Blawg.

Mark Toth has served as Manpower Group North America's Chief Legal Officer since 2000. He also serves on the company’s Global Leadership Team, Global Legal Lead Team and North American Lead Team. Mark is recognized as an expert on legal issues affecting the U.S. workplace and is frequently quoted in media from The Wall Street Journal to 60 Minutes. He is also a past Chair of the American Staffing Association and is a certified Senior Professional in Human Resources. Contact him at mark.toth@manpowergroup.com.