Silencing the Lambs: Weighing the Legal Cost of Confidentiality Requirements During Harassment Investigations

Recently we have been fielding questions from clients concerned with protecting their reputation in the midst of a harassment investigation. Specifically, when a company receives a complaint of workplace harassment they often want the matter to be kept as quiet as possible, so as to avoid the rash of bad publicity caused by the ubiquitous news reporting on the subject of sexual harassment. While this approach is understandable, especially in light of the fact that 68% of EEOC charges in fiscal 2017 were dismissed with a finding of “no reasonable cause,” you must keep in mind that there are currently prohibitions in place that prevent employers from doing so legally.

Section 7 of the National Labor Relations Act (“NLRA”) prevents employers from chilling employee rights to discuss wages, hours, and working conditions among one another. While the NLRA is mostly thought of as applying to unionized workplaces, this is actually a misnomer, as it governs employee rights in both organized and non-union settings alike. Indeed, the very issue of employer confidentiality requirements was analyzed in the Board’s 2015 decision in Banner Health System, 362 NLRB No. 137 (June 26, 2015). In that case, the Board held that it was a violation of the NLRA to require an employee who is subject of an internal investigation to refrain from discussing the investigation publicly except where the employer has a “legitimate business justification” for doing so.

Before you react dismissively to the aforementioned exception given the logical conclusion that saving company reputation until the results of the investigation are complete is obviously legitimate, keep in mind that Banner provided a specific list of conditions that it found were legitimate. Those conditions included: (1) witnesses needing protection; (2) evidence in danger of being destroyed; (3) testimony in danger of being fabricated; or (4) the need to prevent a cover-up.

While it was assumed (correctly) that a shift to a Republican President of the United States would relax burdens on employers that were put in place during the Obama administration, the Board analyzed this issue yet again on February 2, 2018 in Costco Wholesale Corp, Case 05-CA-169958 (February 2, 2018) and reaffirmed the Banner decision, again holding that Costco violated the NLRA when it directed an employee to refrain from discussing the ongoing investigation.

The takeaway from Banner and Costco is employers need to be very careful when making decisions that seem logical due to the far-reaching implications of the NLRA. Many HR professionals and even employment lawyers often interpret how heavy the influence of traditional labor law is on many of the issues we are facing with respect to harassment and discrimination today. For this reason we recommend you conduct training for your managers and even upper management to ensure that you are complying with the NLRA when conducting investigations and handing down employee discipline.

Syntrio is a leader in the human resources and employment law fields (as well as ethics and compliance) and is prepared to help your company implement a compliance program aimed at reducing the potential impact of harassment, discrimination and other employment law issues your organization may face. Syntrio takes an innovative philosophy towards employment law training program design and strives to engineer engaging, entertaining, and thought-provoking content. 

Contact for more information about our discrimination, harassment, and prevention of retaliation online courses and remember to follow us on Facebook, TwitterGoogle Plus, and LinkedIn for daily updates on corporate compliance that impact your company.

Written by, Jon Gonzalez, Esq., Chief Counsel for Syntrio

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