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Employers Beware: Is EEOC Joining the NLRB to Require that Employers Not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint?

Written by David Barmak

Posted in the Mintz Employment Matters Blog

Lorene Schaefer, a mediator, arbitrator and workplace investigator, has reported on the One Mediation blog that by a letter of August 3, 2012 the Buffalo, New York office of the EEOC notified an employer that the employer’s written policy warning employees who participate in an investigation not to discuss the matter and providing that employees who do so may be subject to discipline including termination of employment may be a “flagrant violation” of Title VII and itself an adverse employment action. While the full text of the EEOC’s letter has not been published and the facts in the underlying case are not known, it appears that the case involved complaints of sexual harassment from multiple women.

The employer’s policy, as paraphrased by the EEOC, apparently warned all employees who participate in an internal investigation that they could be disciplined for discussing the matter.  In its letter, the EEOC emphasized that an employee’s discussion of their complaints of employment discrimination “with anyone” is protected opposition. Further, the EEOC noted, a reasonable employee could conclude from reading the employer’s policy that she could be disciplined even for pursuing her charge or otherwise contacting the EEOC if the harassment at issue had been subject to an internal investigation by the employer.

The position set out in the letter from the EEOC’s Buffalo office may be limited to the particular policy and circumstances giving rise to the EEOC’s analysis and, in any event, it is not binding on employers generally. Nonetheless, it reflects the government’s increased sensitivity to employer policies and practices that may unreasonably limit or chill employees from discussing workplace concerns, as most glaringly reflected by the NLRB’s recent ruling in Banner Health System, which we discussed here.

So, what’s an employer to do? First, realize that neither the NLRB’s nor the EEOC’s position on confidentiality address the employer’s duty to maintain the confidentiality of an investigation.  Indeed, the EEOC enforcement guidance expressly provides that an employer’s anti-harassment policy and complaint procedure should include “assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.” Second, review your policies and re-think your approach to internal investigations, to ensure that you are not, in the name of conducting confidential investigations, unduly restricting an employee’s protected rights under the National Labor Relations Act, Title VII and other laws to complain about workplace conditions or discrimination.

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Cynthia J. Larose

Member / Co-Chair, Privacy & Cybersecurity Practice

Cynthia J. Larose is Chair of the firm's Privacy & Cybersecurity Practice, a Certified Information Privacy Professional-US (CIPP-US), and a Certified Information Privacy Professional-Europe (CIPP-E). She works with clients in various industries to develop comprehensive information security programs on the front end, and provides timely counsel when it becomes necessary to respond to a data breach.