Can Employers Order Silence? The New Dialogue on Workplace Investigation Confidentiality

If you are an HR Professional or Employment Attorney, you probably have been peppered recently with reminders about the NLRB and the EEOC’s stances on the degree of control that employers have over employees who may have something to say about working conditions and more.

What has had some people scratching their heads is on figuring out where “the line” is when it comes to a workplace investigation (everything from a follow-up on a complaint to a formal investigation into written allegations of unlawful conduct – such as harassment, discrimination and retaliation).  The questions being pondered include:

  1. Can an employer’s standard protocol for workplace investigations include suggesting or directing employees not to discuss the investigation…even if just during the time that it is pending?  (Answer:  Probably Not and Nope.)
  2. If an employer doesn’t control chatter and gossip about an ongoing internal investigation, does that leave the complainant (usually the victim) in a vulnerable position of being subjected to retaliatory social fall-out? (Answer: Probably Not.  Directing Silence vs. Directing Against Retaliatory Conduct are Different).
  3. What “evidence” would justify an employer directing employees not to discuss an ongoing investigation or the contents of an investigative interview?  And, once the evidence is obtained, doesn’t that mean that the investigation already has been compromised if witnesses are comparing notes, influencing [intimidating?] witnesses’ recollections, etc.?  (Answer:  Evidence and justifications for confidentiality directions should be obtained in advance of the directive being made appears to be the moral of the story.)
  4. Where is the line between the employer and the “impartial investigator” on this issue?  Is it the investigator who determines whether directives regarding confidentiality are warranted to preserve the integrity of the investigation or is it the employer?  This distinction certainly matters when the investigator is a third-party and liability is on the line.

These issues are significant and largely unknown to those who are not specialists in this area.  Employers should ensure that their HR professionals and any investigators it retains are knowledgeable about the laws governing workplace investigations.  Training, like that offered by One Mediation, can assist investigators in avoiding missteps.

Additional Commentary from several attorney bloggers on this issue can be accessed below:

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