Confidentiality Instructions Under Attack by the NLRB and EEOC

September 19, 2012

By: Jessica C. Moller

As previously reported in this blog, on July 30, 2012, in the Banner Health System case, the National Labor Relations Board (“Board”), issued a 2-to-1 decision holding that a hospital violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by asking employees who make a complaint not to discuss the matter with co-workers while the investigation is pending.

Shortly after the Board issued that decision, the Buffalo, NY regional office of the United States Equal Employment Opportunity Commission (“EEOC”) took a similar position that a confidentiality instruction to an employee making a complaint of discrimination would, in that office’s view, constitute unlawful interference with the complaining employee’s efforts to oppose discrimination.

According to the EEOC's Buffalo office:

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition.  It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination.  So, discussing one’s complaints of sexual harassment with others is protected opposition.  An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial.

Although this position taken by the Buffalo office has not officially been adopted by the EEOC as a whole, the fact that two federal authorities are attacking the validity of confidentiality instructions is cause for concern.  At a minimum, employers should take a step back and review their investigatory process to ensure that no undue restraint is being placed on employees.  We offer the following practical pointers employers should keep in mind in conducting this review:

• Preserving the integrity of an investigation by keeping harassment/discrimination complaints confidential is a laudable objective.  However, official EEOC guidance requires that employers maintain the confidentiality harassment/discrimination complaints to the extent possible.  Employers are not required or expected to, nor can they, guarantee that harassment/discrimination complaints will be kept strictly confidential.  The Board’s Banner Health System decision also states that a generalized desire to protect the integrity of an investigation will not justify a general policy that matters be kept confidential.
• It does not matter whether employees are unrepresented or unionized in determining whether their rights under the NLRA have been violated.  Regardless of whether covered employees are represented by a union, they are protected by the NLRA.  However, supervisors are not considered covered employees under the NLRA and therefore supervisors are not entitled to its protections.  Consequently, notwithstanding the Board’s Banner Health System decision, an employer could request a supervisor, as opposed to a non-supervisory employee, not to discuss matters with co-workers without fear of violating Section 8(a)(1).
• Consider only “asking” an employee to keep things confidential or “suggesting” the employee be “discreet” about the “sensitive issue,” rather than “instructing,” “ordering,” or “directing” an employee to maintain confidentiality.  Explain to the employee the benefits of confidentiality and how the employer does not want any information leaked that could potentially hinder its ability to complete a thorough investigation or to gather accurate, untainted evidence.  Confidentiality could also be suggested to the employee without an express directive by mentioning the “sensitive” nature of the matter and how he/she would not want allegations made against him/her to be publicly discussed.  By ultimately leaving some choice with the employee, the employer should still be able to argue it did not violate the employee’s rights under the NLRA or interfere with the employee’s Title VII rights to oppose discrimination.
• Employers should analyze each case on an individual basis before asking an employee not to discuss the matter with co-workers, specifically taking into account the factors enumerated by the Board in Banner Health System:  (1) Are there witnesses in need of protection? (2) Is evidence in danger of being destroyed? (3) Is testimony in danger of being fabricated? and (4) Is there a risk of a cover-up?  Although Banner Health System involved a “request,” not a directive, that the employee maintain confidentiality, the Board did not take issue with the request itself but rather with the employer’s blanket practice of requesting confidentiality of all employees without making an individualized assessment as to whether a request was appropriate in any given case.  The Board ultimately viewed this blanket practice as effectively prohibiting any discussion of investigations amongst employees and therefore violative of Section 8(a)(1).  Blanket requests or instructions to maintain confidentiality in all, or virtually all, investigations will likely not be upheld.
• Employers should also consider other intangible factors, such as whether the individual is likely not to discuss the matter on his/her own accord even without any request from the employer to keep it confidential.  If the employee would likely maintain confidentiality without any direction from the employer, why risk potential liability by issuing a request?
• If a decision is ultimately made to issue a confidentiality instruction or directive, notwithstanding the potential risk of liability in doing so, all of the reasons underlying this decision should be clearly and promptly documented, in writing, in case the decision is ever challenged in the future.
• Once the investigation is complete, consider affirmatively lifting any confidentiality instruction that was issued. Doing so could potentially limit the time period for which an employer could be held liable for the confidentiality instruction if it is ultimately held unlawful.