Federal agencies have recently shown increased interest in how employers conduct workplace investigations pursuant to the laws they are charged with protecting. First, in Banner Estrella Medical Center, the National Labor Relations Board (the "Board") ruled that a hospital's blanket prohibition on employee discussion of workplace investigations violated the National Labor Relations Act ("NLRA"). In that case, the employer directed employees making a complaint to refrain from discussing the matter with their coworkers while the investigation was ongoing. According to the Board, the blanket prohibition violated the NLRA by infringing on employees' rights to engage in protected, concerted activity.
Shortly thereafter, according to Lorene F. Schaefer, Esq., of One Mediation, the U.S. Equal Employment Opportunity Commission's Buffalo, NY office stated that, in connection with a discrimination charge, it would investigate whether an employer's written policy, warning all employees who participate in internal investigations of harassment that they could be subject to discipline or discharge for discussing "the matter," violates Title VII's anti-retaliation provisions.
These developments call into question practices that many employers utilize in trying to maintain the confidential nature of investigations.