[authors: Kevin M. Ceglowski,David L. Woodard]
A recent decision from the National Labor Relations Board (NLRB) and comments from an Equal Employment Opportunity Commission (EEOC) attorney reveal a risk in prohibiting employees from discussing ongoing internal investigations. Employers frequently instruct employees to not discuss such matters in order to preserve the integrity of the investigation. Employers must now be aware that the NLRB and the EEOC take the position that disciplining employees in these situations could lead to liability under the National Labor Relations Act (NLRA) and Title VII of the Civil Rights Act.
On July 30, 2012, the NLRB held that prohibiting employees from discussing complaints an internal human resources investigation violated the NLRA because it failed to minimize the impact on employees’ rights under the NLRA to engage in protected concerted activity. In the Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro matter, the company’s human resources consultant routinely asked employees making a complaint not to discuss the matter with their coworkers while the company’s investigation was ongoing. The NLRA ruled this instruction violated the NLRA because the company’s concern with protecting the investigation was outweighed by the employees’ right to engage in concerted activity. This ruling applies to blanket prohibitions, and the opinion acknowledges the circumstances of a particular incident may justify a requirement that employees not discuss the investigation.
Following the NLRB ruling, CCH Employment Law Daily interviewed Justine Lisser, EEOC Senior Attorney-Advisor and spokesperson, about the EEOC’s view of similar prohibitions on employee discussions. Ms. Lisser said, “Broad policies that impose discipline on those who do not abide by strict confidentiality requirements are likely to run afoul of the anti-retaliation provisions of Title VII and/or the other federal EEO statutes [the EEOC] enforce[s].” In particular, such prohibitions will violate the anti-retaliation prohibitions in Title VII. Ms. Lisser did concede that, “An employer who merely suggests that those who are involved in internal investigations of discrimination keep the matters discussed confidential until the investigation is complete out of concern for the integrity of the process is less likely to be found to have violated EEO laws.”
Employers who routinely instruct complaining parties and witnesses to not discuss any aspect of internal investigations should keep the Banner Health Systems NLRB decision and Ms. Lisser’s comments in mind. Employers who have questions about whether the particular circumstances of an investigation justify instructing employees to keep it confidential should consult their employment counsel to analyze whether such an instruction would risk enforcement actions from the NLRB or EEOC. As many employers know, the NLRB is becoming increasingly active in non-union workplaces and the Banner Health Systems matter is a warning about yet another area of possible enforcement.