The headlines seem to be filled with stories of workplace harassment, and employers are feeling pressure to respond quickly and appropriately to complaints of harassment in their workplaces.

How that is done is important, as the investigation can cause myriad unanticipated legal problems.

A new decision by the National Labor Relations Board reminds us that the goal of effectively investigating harassment is not unrestricted.

A Costco employee was accused of making "racially charged and discriminatory comments" to a coworker during an argument at work.

When the store manager questioned the employee during his investigation, the manager ended by telling the employee not to discuss the incident with anyone else. The employee was fired and filed a charge with the NLRB.

Neither the employee nor his union objected to the manager’s instruction. Nevertheless, the NLRB concluded that the manager’s single sentence violated the National Labor Relations Act because it would "reasonably tend to chill employees" in their exercise of their rights to discuss the terms and conditions of employment with others.

'Employers Should Be Careful'

This legal principle is not new, although it is still often misunderstood.

The NLRB first condemned an employer’s practice of instructing employees not to discuss ongoing investigations in its 2015 Banner Health Systems decision.

Employers need to evaluate if each particular investigation requires a confidentiality instruction.
Such an instruction is appropriate only where there is a particular and substantial need for confidentiality, such as a risk of evidence being destroyed or witnesses being coerced.

Costco provided no evidence to support such a need.

While there may often be good reasons for wanting to maintain confidentiality, especially when the investigation involves a sensitive topic such as sexual harassment or assault, employers need to evaluate if each particular investigation requires a confidentiality instruction.

Such a directive must be defensible. Even before interviewing witnesses, an assessment must be made as to whether there is a risk that evidence will be destroyed, witnesses will collude, and/or witnesses will be coerced.

There has been some speculation that the Banner Health Systems decision will be overturned by the new NLRB, as a number of its members have changed under the current presidential administration.

Until that happens, employers should be careful when conducting investigations.


About the Authors: Christopher Engler and Gary Starr are attorneys in the law firm Shipman & Goodwin LLP in Hartford.