Bar News - April 19, 2013
Opinion: Federal Rulings Conflict on Workplace Confidentiality
By: Julie A. Moore
As someone who has conducted workplace investigations for most of my 21 years in practice, I understand the importance of confidentiality (and non-retaliation) in properly conducting sensitive internal investigations involving matters such as sexual harassment. The National Labor Relations Board (NLRB) sent me and other investigators and employment attorneys into a tailspin when it issued a ruling last July about restricting confidentiality in these investigations.
This NLRB ruling conflicts with well-established authority from the courts and the federal Equal Employment Opportunity Commission (EEOC). I think the ruling goes too far, and it has created a conflict for employers and attorneys, making us ponder which agency’s rule should be followed.
Further, as if figuring out which rules to follow and learning new procedure didn’t cause enough confusion, now we learn it’s possible that all NLRB rulings from 2012 may be in jeopardy because, in January, a panel of federal judges in Washington held that President Obama’s recess appointments of three people to the NLRB were invalid. If this judicial ruling stands, the board’s work from last year was all for naught due to the lack of the requisite three-person quorum to make certain decisions. Other appellate courts are hearing similar arguments, and an appeal of the January decision may be headed to the US Supreme Court.
I remind myself of why the promise of confidentiality in investigations, such as those involving harassment or other forms of misconduct, is so critical. It encourages aggrieved employees to come forward and share their concerns, knowing that they will be discussed only on a need-to-know basis. It offers protection from retaliatory treatment to witnesses who cooperate, particularly where the information provided could be detrimental to harassing managers or create legal liability for the employer. Likewise, confidentiality protects the reputation of the alleged wrongdoer, who might have been wrongfully accused, by stifling gossip and rumors about allegations of impropriety. Requiring confidentiality may also serve to protect the integrity of witness testimony and prevent the destruction of evidence.
This opinion on confidentiality is not mine alone. The EEOC – the federal agency in charge of protecting and enforcing the laws related to discrimination, harassment and retaliation – also appreciates the sanctity of confidentiality in investigations. In its 1999 report, "Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors," the EEOC stated that harassment policies should contain a statement providing "[a]ssurance that the employer will protect the confidentiality of harassment complaints to the extent possible."
Moreover, an entire section on confidentiality addresses this important topic, stating: "An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible… [I]nformation about the allegation of harassment should be shared only with those who need to know about it." As a lawyer who devotes most of her practice to playing the investigator role, I always discuss the need for confidentiality in my interviews.
Let’s back up to last summer and examine the Banner Health System decision, where the NLRB – the federal agency tasked with enforcing labor law on employers and unions – found that a human resources consultant’s admonition to employees about confidentiality in an investigation was a violation of law, because it chilled employees’ rights to talk with co-workers. The board struck down "blanket" confidentiality policies that employers often use, stating that a confidentiality clause applied under "any" circumstance is unlawfully overbroad, because it would have a "reasonable tendency to coerce employees" from engaging in speech that is protected under Section 7 of the National Labor Relations Act. A case-by-case balancing test, it said, should be used instead. This is at odds with longstanding EEOC guidance on the subject.
While this ruling is not the first by the NLRB addressing confidentiality in investigations, it is the most sweeping. The board takes an unnecessarily broad view, in my opinion, of Section 7, which provides, "Employees shall have the right… to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…" Included in the big umbrella of protected Section 7 rights is the right to freely discuss wages, hours, and other terms and conditions of employment. I understand talk about wages being covered, but the board wants employees to have the freedom to talk amongst themselves about virtually all workplace concerns, including investigations, in most instances.
In Banner, the NLRB did not place a total ban on confidentiality provisions. Rather, it held that an employer must show that its "legitimate business justification" outweighs the Section 7 rights bestowed on employees to justify a prohibition of workplace discussions of internal investigations. The burden lies with the employer to show that such confidentiality restrictions would be necessary for any one of the following reasons: to protect a witness; to prevent the destruction of evidence; to preserve testimony and thwart fabricated testimony; or to prevent a cover-up. Employers may well be able to show at least one of these fits when conducting investigations, but the NLRB failed to provide attorneys with further guidance.
What is certain is that my typical introductory language about process to the complaining party, alleged wrongdoer, and witnesses – "this investigation is confidential; that means that you can’t discuss what we talk about in this meeting" – must change. And, just as employment attorneys master the new rules, we have to stay tuned to see if Banner may be in jeopardy in light of the DC appellate court’s ruling, other court decisions and legislative proposals that may become law.
As it stands, employers should adhere to analyzing the need for confidentiality in internal investigations on a case-by-case basis, while keeping an eye out for the next directive on this important issue.
|Julie A. Moore
Julie A. Moore is president of Employment Practices Group, a legal and HR consulting firm she founded in 1998.