Tuesday, April 17, 2018

Overly Broad Employer Confidentiality Policies Could Be Illegal

A common defense that employers often use against harassment claims is that they exercised reasonable care to prevent and correct the harassing behavior. According to the Equal Employment Opportunity Commission (EEOC), one of the elements required to show that reasonable care was exercised to prevent and correct harassing behavior is “an assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.” Therefore, many employers impose broad confidentiality policies in regards to harassment investigations.

Ironically, such a broad policy might actually violate the National Labor Relations Act (NLRA). The NLRA prohibits employers from forbidding employees from discussing workplace conditions with one another. In Banner Estrella Medical Center, 358 NLRB 809 (2012), the National Labor Relations Board (NLRB), which enforces the NLRA, found that an employer violated the NLRA by routinely asking employees not discuss ongoing investigations with their coworkers. The NLRB found that such a provision prevented employees from discussing workplace conditions with one another. To lawfully require strict confidentiality during an investigation, the NLRB found that an employer must show a legitimate business justification for such a confidentiality policy, like the need to protect witnesses or prevent tampering with evidence.

There are a few things that employers can do to navigate through these seemingly conflicting legal positions. First, employers should refrain from including language in their written anti-harassment policy that states that employers should never tell their employees not to discuss ongoing workplace investigations. These policies should explain that although management will protect the confidentiality of the information involved in a harassment investigation to the fullest extent possible, in certain circumstances it may need to disclose this information.

Additionally, employers should refrain from imposing blanket rules in general. They should approach each investigation individually, and determine whether there is a business justification for failing to keep the details of an investigation in strict confidentiality. They should then document what these business justifications are.

Feel free to contact me if you have questions about how to appropriately conduct an investigation or draft a harassment investigation policy.