Silence is Not Golden – Employers Should Rethink Policies that Silence Employees During Internal Investigations

In light of a recent U.S. Equal Employment Opportunity Commission (“EEOC”) communication, employers should review their internal investigation policies to ensure that they do not completely silence employees.  In an August 3, 2012 letter from the EEOC’s field office in Buffalo, New York to an undisclosed employer, the agency warned that the employer’s policy prohibiting employees from discussing an ongoing internal investigation of harassment may violate Title VII of the 1964 Civil Rights Act (“Title VII”).  Title VII prohibits illegal workplace harassment, discrimination and retaliation.

The employer in question had a written policy warning all employees who participated in an internal investigation of harassment that they could be subject to discipline or discharge for discussing “the matter” with others.  The EEOC letter criticized the employer’s policy for being “so broad that a reasonable employee could conclude from reading it that she could face discipline for making inquiries to the EEOC about harassment” if that harassment is the subject of an internal investigation.

Although the EEOC letter may be limited to its facts and is not generally binding on employers, by its action, the EEOC follows in the footsteps of the National Labor Relations Board (“NLRB”).  In Banner Estrella Medical Center and James Navarro, 358 NLRB 93 (2012), the NLRB ruled that a blanket statement prohibiting an employee from discussing an ongoing investigation violated the National Labor Relations Act (“NLRA”) Section 8(a)(1) by restricting an employee’s rights under Section 7 of the NLRA.

While an employer has an interest in maintaining the integrity of its internal investigations, and may have legitimate reasons for instituting steps to promote confidentiality as to harassment claims, employers need to be cautious not to create a blanket policy totally silencing employees.  Rather, according to the NLRB, before mandating silence, employers should consider factors described in the Banner decision when instituting and implementing confidentiality measures, such as whether: (i) witnesses need protection; (ii) evidence is in danger of being destroyed; (iii) testimony is likely to be fabricated; or (iv) there is a need to prevent a cover up.

As a result of these directives, employers should review their investigation policies to ensure that they do not run afoul of the EEOC and NLRB’s law and guidance.