…be aware of two very recent and very important pieces of information. In one case, Banner Health Care 358 NLRB No. 93, the National Labor Relations Board found that blank “gag rules” requiring all participants in an investigation to refrain from discussing the investigation while it was ongoing, with the rationale of protecting the integrity of the investigation was a violation of Rule 7, which allows employees to discuss the “terms and conditions of their employment.” The NLRB indicated that an employer has to have a legitimate business interest that outweighs that rule, including the need to protect a specific witness, danger of evidence being destroyed, testimony was being fabricated or there was a need to prevent a cover up. A blanket practice to require all employees to refrain from discussing the matter was deemed too broad to meet these criterion.
In a second matter, the the EEOC’s , office has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with co-workers:
You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.
EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition. It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination. So, discussing one’s complaints of sexual harassment with others is protected opposition. An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial”
While this is only one office of the EEOC, and we will see challenges to the NLRB decision, employers should nevertheless promptly make changes in their checklists or other means of providing notices to witnesses.
1) Ask, don’t order witnesses and parties to refrain from discussing the matter, and explain that your purpose is to be certain the investigation is far and unspoiled by gossip, false impressions ,or influences.
2) Do as I have, and clarify to the witnesses and parties that they do have a right to discuss the terms and conditions of their employment with others, however they should not discuss the questions you have asked them or their answers.
3) Analyze whether there is a reasonable risk of witness tampering, retaliation or harm to a witness, evidence that may be destroyed or collusion with others to falsify testimony. If, for instance, a respondent has allegedly threatened a complainant with consequences for reporting, it seems the NLRB would find that an order to maintain confidentiality outweighed the rights under Rule 7.
This is not new. I wrote about the tension between the right to concerted activity and investigative confidentiality in my book, and found myself posting it recently in a Linked In forum. Make sure you have a sound basis for requesting someone to refrain from discussing the interview, clarify the purpose, and never provide a blanket gag order.