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Posted by Martha Zackin on August 20, 2012

Employers Beware: Is EEOC Joining the NLRB to Require that Employers Not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint?

By David Barmak

Lorene Schaefer, a mediator, arbitrator and workplace investigator, has reported on the One Mediation blog that by a letter of August 3, 2012 the Buffalo, New York office of the EEOC notified an employer that the employer’s written policy warning employees who participate in an investigation not to discuss the matter and providing that employees who do so may be subject to discipline including termination of employment may be a “flagrant violation” of Title VII and itself an adverse employment action. While the full text of the EEOC’s letter has not been published and the facts in the underlying case are not known, it appears that the case involved complaints of sexual harassment from multiple women.

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Posted by Martha Zackin on August 13, 2012

NLRB Takes Aim at Policies Designed to Ensure Confidentiality of Internal Investigations

By Michael S. Arnold

The National Labor Relations Board continues to expand the scope of the National Labor Relations Act in union and non-union workplaces – this time taking issue with an employer’s policy prohibiting employees from discussing ongoing internal investigations. 

As sensible employers everywhere realize, it is important to maintain confidentiality during the course of an internal investigation.  The Board apparently disagrees, taking the position that a blanket policy of requesting participants in an internal investigation to refrain from discussing the investigation violates the NLRA.  Specifically, in Banner Health System, the Board found that an employer’s desire to protect the integrity of its investigations was not a legitimate business justification sufficient to overcome the employees’ NLRA section 7 rights to engage in concerted activity – that is, generally, to discuss issues related to their compensation, benefits or working conditions. 

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Posted by Martha Zackin on August 12, 2011

NLRB: Broad Confidentiality Clauses May Be Per Se Unlawful

Written by H. Andrew Matzkin and Paula Lyons

Many employers have employees sign confidentiality agreements aimed at prohibiting disclosure of confidential business information to third parties, and it has been widely assumed that such clauses were lawful. That assumption may no longer be accurate, however, as a recent First Circuit decision has held that confidentiality clauses in employment contracts can constitute a per se violation of employees’ protected employee rights under the National Labor Relations Act (NLRA) if the clauses can be read as prohibiting all discussions of wages, hours, and working conditions.  Click here to read the full article.