Can we discipline employees for talking about a workplace investigation?

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Question:

I work in the HR department of a large company. I've been helping to investigate a sexual harassment complaint in our regional office. I was recently told that several employees -- whom we interviewed as potential witnesses to the alleged harassment -- have been talking to each other and to other employees about the investigation. Our standard investigation paperwork instructs employees that the investigation is confidential, and cautions them that talking about it could lead to discipline. Can we discipline these employees? Should we? 

Answer:

Investigation confidentiality rules are a very hot topic these days. It used to be standard practice for companies to forbid employees from discussing an investigation at work, on pain of discipline or even termination. It sounds like your company followed this practice. These days, however, it could lead to legal problems. 

Both the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces laws prohibiting discrimination and harassment, and the National Labor Relations Board (NLRB), which enforces federal laws regarding unions and workplace organizing, have recently cautioned that such blanket gag rules could be illegal. 

In a letter to an employee, 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 federal antidiscrimination laws. The letter also indicated that employees subject to such a broad confidentiality rule might believe that they could be disciplined or fired for discussing harassment with the EEOC or other outside agencies. 

The NLRB found that employers may not tell 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 their employment with each other. Although the NLRB said that an employer could impose confidentiality if it had a legitimate business justification for the request that outweighs the employee's rights, the justification has to be fairly significant. And, it has to be based on facts specific to the investigation, rather than a general, blanket approach to all workplace investigations. 

So, what should you do? First, consider whether any damage has been done by the employees' discussions. If, for example, you believe the employees are trying to influence others to say certain things or are creating a difficult environment for either the accuser or the accused, that's a potentially serious problem. In this situation, you should consult with an experienced employment lawyer to find out whether you can craft a confidentiality requirement that will pass legal muster. If, however, you are dealing merely with workplace gossip, you might sensibly decide to let it go.  

Second, think about how to change your policies -- and your investigation practices -- in the future. Your paperwork should not include a blanket confidentiality requirement. And, when you interview employees, you should focus on revealing only what that person needs to know to provide full, accurate answers. Make sure you are maintaining confidentiality yourself, both to set a good example and to avoid providing more fodder for the rumor mill. 

Finally, consider how you are conducting the investigation. Practices such as interviewing people in a private space, or even off-site, can help cut down on gossip. Staying focused and avoiding delays in the investigation are also good strategies. The quicker you come to a conclusion, the quicker the workplace can return to normal. 

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