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Wednesday, April 24, 2013

Can Your Employees Keep Secrets?

By Tommy Eden, Attorney

On June 30, 2012, the National Labor Relations Board (NLRB) in Banner Estrella Medical Center held that an employer's request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees' rights to engage in Section 7 protected concerted activity under the National Labor Relations Act.
By prohibiting employers from requiring that workplace investigations remain confidential, it was widely believed that the NLRB severely constrained the ability of employers to conduct thorough and accurate workplace investigations to stop and remediate workplace harassment. The EEOC mandates that an employer must conduct a prompt investigation, and take corrective and preventative actions where necessary when faced with workplace harassment. On April 16, 2013, the NLRB General Counsel reacted to the constraints in Banner releasing the following guidance all employers should consider adding to their Professional Conduct and Prohibition Against Harassment Policy:

The Company has a compelling interest in protecting the integrity of its investigations. In every investigation, the Company has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. The Company may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation in strict confidence. If the Company reasonably imposes such a requirement and you are involved in the investigation and you do not maintain such confidentiality, you may be subject to disciplinary action up to and including immediate termination

Common Sense Counsel: Having a legally defensible professional conduct and prohibition against harassment policy, annual company wide employee training on that policy, conducting a prompt and effective confidential investigation of complaints and taking proper remedial action are all keys to keeping employers out of court.

Tommy Eden is an attorney with Constangy, Brooks & Smith, LLP, member of the ABA Section of Labor and Employment Law, East Alabama SHRM Board of Directors Tommy can be contacted at or 334-246-2901.