The North Carolina Retaliatory Employment Discrimination Act (REDA) prohibits employers from terminating or taking other adverse action against employees who complain about violation of rights protected under certain state laws. On Tuesday, the North Carolina Court of Appeals affirmed dismissal of a REDA lawsuit filed by an employee who was terminated after allegedly discussing details of his employer’s internal investigation.
In Sloan v. Town of Mocksville, the plaintiff was a police officer who claimed that he was forced to continue working after he disclosed that he had contracted COVID-19, a violation of Occupational Safety and Health Administration (OSHA) rules. An anonymous Facebook post claimed that the chief of police was attempting to cover up the fact that town officers who tested positive for COVID-19 continued working. In response, the police department began an internal investigation of the source of information contained in the Facebook post. As part of the investigation, the plaintiff was interviewed and cautioned not to discuss details of the investigation with anyone other than his attorney. The town learned that the plaintiff spoke with a state trooper about the complaint and investigation, and he was terminated for insubordination. He sued, claiming that the termination constituted illegal retaliation under REDA.
The Court of Appeals affirmed summary judgment for the town. The court concluded that the confidentiality policy was a legitimate non-discriminatory reason for the termination decision. The plaintiff also failed to prove that the termination decision was pretext to retaliate against him for presumably being the source of the Facebook post, the court concluded.
This decision did not expand employees’ rights under REDA to discuss with co-workers the substance of investigations allegedly initiated in retaliation for complaining about violations of state law. If the employer has a policy intended to protect the integrity of the investigation and consistently enforces it, that disciplinary action will not be considered retaliation under REDA.
North Carolina employers should exercise caution when applying this decision. As a municipal employer, the defendant in this case is not subject to the National Labor Relations Act. Private employers that attempt to enforce broad confidentiality policies in conjunction with internal investigations run the risk of unfair labor practice charges based on those employees’ right to engage in protected concerted activity.