EEOC and NLRB Tag Team Workplace Investigations

There have been some great tag teams over the years . . . the British Bulldogs, Hart Foundation, Legion of Doom . . . that rap group Tag Team (c'mon, you remember Whoomp! There It is) . . . and now, the EEOC and NLRB??? Yup, they're taking on workplace investigations in a steel cage match.

The EEOC's Buffalo office recently issued a letter condemning the practice of threatening employees with discipline for "discussing 'the matter.'" Here, "the matter" is an internal workplace harassment investigation.

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. In this case, telling the ___ women who complained of harassment that they were not to tell others about the alleged harassment is enough to constitute a harm under Title VII. There does not have to be a separate adverse action.

What about the EEOC's tag team partner, the NLRB? In a recent decision (Banner Health System (.pdf)), the NLRB took a similar position:

As the judge found, human resources consultant JoAnn Odell routinely asked employees making a complaint not to discuss the matter with their coworkers while the Respondent’s investigation was ongoing. The judge found that the Respondent’s maintenance and application of this prohibition did not violate Section 8(a)(1). We disagree.

For some reason, this decision has been controversial in the blogosphere - but the core holding is actually based on a case from about a year ago. In Hyundai Am. Shipping Agency, Inc. & Sandra L. Mccullough, 357 NLRB No. 80 (Aug. 26, 2011), the NLRB held that:

Under the Board's balancing test, it is the Respondent's responsibility to first determine whether in any give investigation witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, and there is a need to prevent a cover up. Only if the Respondent determines that such a corruption of its investigation would likely occur without confidentiality is the Respondent then free to prohibit its employees from discussing these matters among themselves.

As the NLRB notes, employers often have good reasons for wanting investigations to remain confidential. In those instances, the employer may prohibit employee discussions about the investigation (according to the NLRB at least). Whether the EEOC will adopt a similar position remains to be seen.

Other bloggers have also covered this new tag team: Jon Hyman here and Dan Schwartz here.