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#MeToo vs. the NLRA: How to Craft Confidentiality Policies that Survive Scrutiny from the EEOC and the NLRB

Posted By Cindy Hesch, Thursday, March 29, 2018
Updated: Monday, March 26, 2018

#MeToo vs. the NLRA: How to Craft Confidentiality Policies that Survive Scrutiny from the EEOC and the NLRB

Erin Norris Bass
Associate
Steptoe & Johnson LLP

Employers often defend Title VII harassment claims by showing that they exercised reasonable care to prevent and correct harassing behavior. A key aspect of reasonable care requires an employer to have an anti-harassment policy that, according to the EEOC, “should contain, at a minimum” six elements including an “assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.”

At the same time, the NLRA prohibits employers from maintaining blanket confidentiality rules that prohibit employees from discussing workplace investigations. In Banner Estrella Medical Center, 358 NLRB 809 (2012), the NLRB found that an HR consultant violated the NLRA by routinely asking employees not discuss ongoing investigations with their coworkers. To lawfully require confidentiality of employees, an employer must show a legitimate business justification specific to the investigation at issue, such as the need to protect witnesses or prevent tampering with evidence. That remains the law today, despite the NLRB’s recent shift on employer policies.

So how’s an employer to reconcile those seemingly conflicting laws?

First, written anti-harassment policies should inform employees that management will protect the confidentiality of the complainant to the fullest extent possible. The policy can explain to employees that management may need to disclose some information in order to conduct a thorough investigation. But the policy should not instruct employees that they must never discuss ongoing workplace investigations.

Second, employers can and should always require management (that is, employees who qualify as “supervisors” under Section 2(11) of the NLRA) to maintain the confidentiality of investigations and disclose details only to those who need to know. The NLRA does not give Section 2(11) supervisors the right to engage in concerted activity, and therefore management can impose additional restrictions on them. In addition, employers should hold their supervisors accountable for appropriately maintaining confidentiality; otherwise their conduct may deter employees from reporting harassment, and the EEOC may find that an employer failed to take reasonable care to prevent harassment.

Finally, employers must make individualized determinations in each investigation as to whether the circumstances warrant instructing employees not to discuss the investigation. Take a case where management discovers during the course of the investigation that one employee sent text messages to other employees telling them what to say during investigation interviews. In that case, management could demonstrate a reasonable fear that employees will fabricate their stories unless instructed not to speak about the investigation. If management believes it has a legitimate business justification for imposing a confidentiality rule, management should document its reasons and carefully communicate the confidentiality rule to employees to minimize litigation risk.

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