During an internal investigation involving alleged employee misconduct, employers generally prefer to keep the investigation confidential. For example, Employee A alleges that Employee B is sexually harassing her. After interviewing the accuser (Employee A), HR advises her not to discuss the allegations or the investigation with other employees. HR then interviews the accused (Employee B) and gives him the same counsel, “Don’t discuss the matter with any employees.” To emphasize the point, perhaps the employer even has a policy that imposes discipline on an employee who fails to keep the investigation confidential.
However, both the National Labor Relation Board (NLRB) and the Equal Opportunity Employment Commission (EEOC) take the position that employers cannot require broad gag orders during employee investigations. According to the NLRB in an opinion from July 2012, an employer may not prohibit employees from discussing ongoing investigations unless the employer can “show that it has a legitimate business justification that outweighs” the employees’ rights under the National Labor Relation Act. In essence, the NLRB takes the position that an employer “cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.”
The EEOC takes a similar position. An EEOC spokesperson has commented that “broad policies that impose discipline on those who do not abide by strict confidentiality requirements are likely to run afoul of the anti-retaliation provisions of Title VII and/or the other federal EEO statutes.”
In light of these positions taken by the NLRB and the EEOC, employers should be careful of investigative policies and procedures that broadly prohibit employees from discussing matters under investigation.
If you have questions regarding your employee investigation policies and procedures, please contact a member of our employment group or call 208.344.6000.