Tag Archives: protected activity

Confidentiality of Workplace Investigations

Workplace complaints and investigations can polarize a workplace. If your company has to investigate sexual harassment, bullying, or other serious problems, chances are good that employees will be talking about it and choosing sides. Of course, some of this is inevitable: We’re only human, right? But employers often try to minimize the fallout — in lost productivity, damaged reputations, or even changed stories and manufactured evidence — by requiring confidentiality. Employees who are interviewed as part of an investigation are routinely told that they may not discuss the investigation with other employees and may not reveal the facts they learn during the interview.

In the past few months, however, a couple of government agencies have cautioned employers not to go too far in trying to stop employee discussions. First, the National Labor Relations Board (NLRB) weighed in. In the case of Banner Estrella Medical Center, an HR consultant asked employees who had made a complaint not to discuss the matter with coworkers while the investigation was ongoing. The NLRB found that this request violated employees’ rights to discuss the terms and conditions of employment with each other. Prohibiting employee discussions of an ongoing investigation is allowed only if the employer can show that it has a legitimate business justification outweighing the employees’ rights. For example, if a witness needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or the employer needed to prevent a cover-up, the NLRB indicated that these facts could justify a confidentiality requirement. However, the requirement must be based on facts specific to the investigation, rather than a general, blanket approach to all investigations.

The Equal Employment Opportunity Commission (EEOC) has also questioned broad confidentiality requirements. As Lorene Schaefer reports in a blog post, the Buffalo, New York, office of the EEOC sent an employer a letter about its confidentiality policy. The EEOC stated that threatening to discipline or fire employees who discussed a sexual harassment complaint with anyone was illegal retaliation. Discussing harassment complaints with others is a form of “protected opposition” to illegal practices under Title VII. The letter also indicated that employees subject to such a confidentiality rule might believe they could be disciplined or fired for discussing harassment with the EEOC.

So what should employers do, in light of these opinions? It appears that blanket “gag orders” might create some risk going forward. However, a more limited confidentiality rule (for example, one that asks employees not to discuss what is said in the actual investigative interviews, as opposed to the underlying facts) could still pass muster. And, if you have specific concerns, based on the facts of the case, about falsification of evidence or witnesses talking to each other to “get their stories straight,” the NLRB opinion would still allow a confidentiality requirement. However, there are still a lot of grey areas here.

What’s more clear: Employers should do what they can on their end to maintain confidentiality. This includes, for example, revealing only the facts necessary to conduct a thorough interview. The accused employee must be told all of the allegations, but not every witness will need to hear the details. Employers should also take this as yet another cue to be speedy in conducting the investigation. The quicker a complaint is investigated and laid to rest, the less time there is for workplace chatter to do damage.

NLRB: Non-Union Employer Shouldn’t Have Fired Employees Over Facebook Posts

As I’ve discussed in a couple of previous posts, the National Labor Relations Board (NLRB) has been very active recently in the area of social media. Not only by creating its own accounts (like a Facebook page), but also by going after employers who discipline and fire employees over their online posts. Last week, an administrative law judge for the NLRB issued the Board’s first Facebook decision. (According to the NLRB’s press release about the case, this is the first Facebook case to go all the way through a hearing and a decision by a judge.) And here’s a red flag for the majority of employers whose employees aren’t unionized: The case was against a non-union employer.

In the case, brought against the nonprofit group Hispanics United of Buffalo (HUB), a group of employees had posted comments to a coworker’s personal Facebook page (the employees used their own computers and posted on their own time; there was no allegation that they used the employer’s resources). A HUB employee, Ms. Cruz-Moore, had apparently been criticizing the performance of her coworkers. Another employee, Ms. Cole-Rivera, posted this comment on her own Facebook page about it: “Lydia Cruz a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?” A group of coworkers responded, mostly by saying that they worked hard and that clients who complained wanted services the group didn’t provide. At some point, Ms. Cruz-Moore chimed in, asking the original poster to “stop with ur lies about me.” A few days later, five of the posters were fired. They were told that their posts constituted bullying and harassment of Ms. Cruz-Moore. (In a sad and strange twist, they were also told that Ms. Cruz-Moore had suffered a heart attack after reading the posts.)

The administrative law judge found that the firings violated the employees’ rights, under Section 7 of the National Labor Relations Act, to engage in concerted activity for the purpose of mutual aid or protection. These rights apply to union and non-union employees alike. The judge found that the Facebook discussion was “a first step towards taking group action to defend themselves” against Ms. Cruz-Moore’s criticisms, which they could reasonably have believed she was going to take to HUB management. By firing them, HUB precluded the employees from acting as a group in response to the complaints about their performance. The judge also found that HUB essentially admitted that it viewed the fired employees as a group engaged in concerted activity because it lumped them together in firing them.

According to a report issued last month by the NLRB’s General Counsel office, the NLRB has been involved recently in 14 cases involving social media. In four of the cases, the NLRB concluded that the employees’ Section 7 rights had been violated; in five cases, the NLRB found that the employees had not been engaged in protected activity, either because only one employee was involved (and therefore, there was no “concerted” activity) or because the employees were not trying to improve the terms and conditions of their employment (so their activity was not “protected”). In a handful of cases, the NLRB found that the employer’s social media policy was too broad, because employees could interpret it to prohibit protected activity, and in one case the Board found against a union that had posted a YouTube video of union organizers interrogating employees at a non-union workplace about their immigration status.