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The AR Group

Did the EEOC really say that silence is NOT golden?

By Victoria Aguilar

This past August, the Buffalo field office of the EEOC opined that a company must not prevent employees involved in an ongoing internal investigation of harassment from discussing it. Almost immediately, employers and lawyers alike began to question what this opinion could mean (in practical terms) since standard operating procedure of an internal investigation is to request confidentiality to ensure the integrity of the investigation.

First ? and this is important ? field office correspondence is not law. Secondly, the analysis contained in the Buffalo field office letter may actually be limited not just to that territory, but more specifically, to the specific charge in question. Thus, in order to understand whether this decision has significant impact on employers in general, we need to better understand what it is that caused the EEOC to highlight what many view as a fundamental right. It turns out that what the EEOC letter was really saying was that an employee is free to complain to anyone about discrimination. So to the extent that an employer tries to stop or prohibit an employee from talking with others about alleged discrimination ? that is actually violating Title VII Rights. Because harassment often comes to light as a result of employee communication (one employee talking to another), the EEOC’s letter makes a lot of sense.

As a result, we must question whether the cacophony of cries was necessary as a result of the EEOC letter since the sky really isn’t falling. Yet, it is still important for employers to recognize that the warning in the letter reflects a general movement (both by the EEOC and the National Labor Relations Board) that recently struck down similar prohibitions in a decision ruling that a blanket policy prohibiting an employee from discussing an ongoing investigation violated the National Labor Relations Act. (See Banner Estrella Medical Center decision.) What this means, in practice, is that it is still a very good idea for employers conducting internal investigations to ask witnesses not to discuss the specifics of any interviews in which they are asked to participate. Accordingly, participants involved in an investigation are still free to discuss the matter with others.

SMART TIP: When conducting internal investigations, the single most important thing an employer can do is to document the investigation (if at all possible under the attorney client privilege, which means with guidance from an attorney). If the EEOC files a lawsuit on behalf of an employee, the fact finder will look for evidence that the employer thoroughly and thoughtfully reviewed the worker’s claim. Employers want the fact finder to be able to say that the employer acted how s/he would have acted in a similar situation. Employers are wise to have a policy and process in place for handling internal investigations to alert complainants and others of their rights. The process also helps provide a starting point for employees to articulate their concerns.