By James Beyer

Hypothetical, based upon a real fact pattern: Sally works for a chair manufacturer and believes the chairs are made with unsafe and illegal toxins. Sally reports her concerns to the head of HR. Sally also says that she thinks her supervisor is “harassing” her for raising this with him because he gave her a bad performance rating. The HR Head thanks Sally for raising her concerns and makes it clear that he appreciates Sally bringing this to his attention and tells Sally that the Company takes such issues extremely seriously. He also states that the Company policy forbids retaliation in any form against any employee for reporting such actions. He also then says that the Company will investigate the allegations and that as part of that investigation it will need to determine what other employees it may need to speak with. In order not to “tip off” other employees in advance and also to protect confidentiality to the extent possible, the HR Head asks Sally not to discuss the investigation with other employees and to keep the investigation confidential. Not more than 10 minutes after Sally leaves his office, the HR Head gets a call that Sally is out on the shop floor loudly telling other employees that she thinks the chairs are made with  unsafe and illegal toxins and that she has reported it to HR and may also inform the government of her concerns. Can the employer discipline Sally for violating its instructions to maintain confidentiality?

What should the Company do?

Even though the employer certainly had a valid reason to ask Sally to keep the investigation confidential and not to discuss it with others, disciplining Sally for violating these instructions is quite risky.

There do not appear to be decisions directly addressing this issue in the context of whistleblower claims. In one case that we reported on as one of the top 10 whistleblower decisions of 2012, an employee was terminated as part of a large reduction in force. Prior to her termination, Plaintiff alleged that she discovered what she believed to be reporting discrepancies and reported them to her supervisor, who forbade her from discussing her findings with co-workers or anyone outside of her department. The court held that the alleged instruction not to discuss the matter with her co-workers or anyone outside her department was one of the factors that showed that there were material issues of fact as to whether the Plaintiff engaged in protected activity which meant that the case would not be dismissed before a trial on the merits.

Outside of the realm of whistleblower cases, there has been a virtual cornucopia of National Labor Relations Board activity finding that any instruction to keep investigations confidential are unlawful under the NLRA because they have a tendency to chill employees from exercising their statutory rights under Section 7 of the Act to engage in concerted activity. Even policies that “recommend” employees maintain the confidentiality of investigations have been struck down because there was nothing assuring employees that they were “free” to disregard the Company’s recommendation/request. See here.

In addition, It may be only a matter of time before the EEOC joins the fray. See here.

An August 2012 pre-determination letter issued out of the EEOC’s Buffalo, New York district office cautioned an employer that its policy of warning employees not to discuss harassment investigations with co-workers could be a violation of Title VII’s anti-retaliation policies. The letter seems to run afoul of the EEOC’s longstanding enforcement guidance that directs employers conducting investigations of workplace harassment to “protect the confidentiality of harassment complaints to the extent possible.” This may signal an emerging trend within the agency as a whole.

In light of this uncertainty, employers may want to:

• Limit confidentiality instructions to investigations of complaints and issues that implicate or are likely to implicate EEO or other legal issues or when investigation integrity is a particular concern;
• Consider and document why confidentiality is necessary to a particular investigation;
• Tailor the confidentiality requirement to the specific subject matter of the investigation and matters discussed in investigatory interviews while the investigation is ongoing;
• Limit the confidentiality instruction to employees who will or are likely to be interviewed during the investigation because they have personal knowledge of events or other directly relevant information;
• Clarify that the confidentiality restriction is not intended to prevent employees from addressing concerns with one another or with the employer; and
• Explain to witnesses that the purpose of the confidentiality restriction is to:
• Preserve the integrity of the investigation process;
• Encourage employees to speak up when they have a problem and give them confidence that they may speak the truth;
• Uphold an anti-retaliation policy; and
• Allow the company to conduct thorough and objective investigations, which, in turn, allows the employer to effectively address employee complaints and concerns and resolve workplace conflict.

It also may be appropriate to forgo the threat of discipline for individuals who breach confidentiality or at the very least make clear that the confidentiality instructions are not intended to interfere with employees’ Section 7 rights, including the right to discuss wages, hours and working conditions with their co-workers.

James Beyer is Senior Counsel in Seyfarth’s Chicago office. If you would like further information or to submit a question regarding this post please contact the Whistleblower Team at ask-whistleblower@seyfarth.com.