Thursday, August 30, 2012

Between a Rock and a Hard Place: The NLRB and EEOC Challenge Confidentiality Requests During Investigations

The blogosphere has been buzzing over recent actions taken by the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) to limit employer requests for confidentiality during workplace investigations. Confidentiality has long been viewed as a hallmark of a good investigation for important reasons, including preserving evidence, encouraging witness cooperation, and reducing retaliation risks. In light of recent NLRB and EEOC activity, however, employers will need to think more carefully about when and how to make confidentiality requests during investigations.
The NRLB’s Position:  At the end of July, the NLRB announced that employers may not have a blanket practice of asking employees not to discuss a complaint with coworkers while the employer is investigating the complaint. (See Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-023438.) The NLRB held that a complaining employee has the right to talk with coworkers about workplace concerns and this right is not outweighed by generalized concerns about the integrity of an investigation. The NLRB stated, however, that an employer may request confidentiality based on an individualized assessment that reveals case-specific risks and takes into account whether (1) witnesses need protection; (2) evidence might be destroyed; (3) testimony might be fabricated; or (4) there might be a cover-up.
The EEOC’s Position:  In early August, a Buffalo, New York EEOC office warned an employer that its confidentiality policy was unlawful, because it was written broadly enough to prohibit a complaining party from talking to the EEOC during the employer’s investigation. This is not the first time the EEOC has challenged confidentiality requirements. In 2002, the EEOC settled a lawsuit with a Minnesota employer over a broad confidentiality statement sent to individuals after they filed charges of discrimination that purported to limit a charging party’s right to talk to witnesses. It appears the EEOC’s position is that confidentiality requirements must not interfere with a complaining party’s ability to gather evidence or pursue a discrimination charge.
What’s an Employer to Do?  While I don’t advocate for confidentiality requirements that would prohibit a complaining party from talking to an attorney, to the EEOC, or gathering evidence in a pending legal action, I’m surprised the NLRB and EEOC won’t recognize an employer’s right to limit workplace conversations for a temporary period during an ongoing investigation. Investigations are usually of a limited duration and, by law, must often be conducted promptly. As such, a temporary limit on workplace conversations should not be unduly burdensome. In addition, confidentiality promotes other legal protections for employees that the EEOC itself enforces. The EEOC enforces anti-retaliation laws, and confidentiality during an investigation reduces the risk of retaliation against a complaining party or supporting witnesses. In addition, the EEOC itself has taken the position in its guidance on sexual harassment that employers are obligated to keep harassment investigations as confidential as possible. This is obviously more difficult to do if an employer can’t request that employees maintain confidentiality.
For now, however, the NLRB’s and EEOC’s positions are what they are. As such, a cautious employer that wants to comply with both the NLRB’s and EEOC’s position on confidentiality should consider doing the following:
·       Conduct the type of individualized assessment discussed above and issue a confidentiality request only if the employer can identify case-specific risks. If a concrete risk can be demonstrated to justify a confidentiality request, the employer should document its risk assessment and any reasons for requesting confidentiality.

·       It appears the NLRB would look more favorably on an employer expressing a preference for confidentiality rather than imposing a confidentiality “requirement” that may lead to discipline or discharge.

·       When a confidentiality request is made, an employer should affirmatively advise the individual making a complaint that he or she is not prohibited from talking with others to gather evidence or in pursuit of the complaint. An employer might still ask the complaining party to be discrete, however, explaining that the employer doesn’t want information to get out that might interfere with the employer’s ability to complete a thorough investigation and to gather accurate evidence.

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