Blanket confidentiality policies may violate law by Davis & Kuelthau, s.c. Tony Renning
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Reader question: Do we need to revise our policies concerning confidentiality in light of recent positions taken by the Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB)? Tony Renning: Most employers have some sort of confidentiality policy in place, whether it’s in an employment contract, an employee handbook or stand-alone policy. Obviously, confidentiality of certain information is important in protecting your business, but an overlybroad confidentiality policy may restrict certain rights afforded to employees under Title VII of the Civil Rights Act as well as Section 7 of the National Labor Relations Act (NLRA). The EEOC recently issued a warning letter stating that an employer’s policy prohibiting employees from discussing ongoing internal harassment investigations is unlawful. The employer had a written policy warning employees participating in internal harassment investigations that they could be subject to discipline or dis-
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charge for discussing the investigation in the workplace. The EEOC advised that any directive to refrain from discussing an internal investigation is an adverse action under Title VII of the Civil Rights Act. The NLRB has held that an employer (both union and non-union) commits an unfair labor practice when it terminates an employee for discussing compensation with other parties. Specifically, the NLRB found unlawful the following language contained in an employment contract: “The terms of this employment, including compensation, are confidential to Employee and Employer. Disclosure of these terms to other parties may constitute grounds for dismissal.” Similarly, the NLRB has declared an employer must have a specific, legitimate business justification for requiring employees (both union and non-union) to maintain confidentiality during internal investigations of employee misconduct. The NLRB recently ruled that a blanket policy requiring employee confidentiality during an internal investigation violates the NLRA and em-
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ployees’ rights to engage in “concerted activity” for “mutual aid and protection.” Employers should take care to review their own confidentiality policies. A carefully crafted policy can protect vital information while complying with Title VII of the Civil Rights Act and Section 7 of the NLRA. For counsel as to employee handbooks, contact Tony Renning at (920) 232-4842 or firstname.lastname@example.org or any other member of the Davis & Kuelthau Labor and Employment Team. Tony Renning is an attorney in the Oshkosh office of Davis & Kuelthau, s.c. (219 Washington Avenue). Mr. Renning provides counsel to private and public sector employers on a wide variety of labor and employment law matters. This article is intended to provide information only, not legal advice. For advice regarding a particular employment situation, please contact a member of the Davis & Kuelthau, s.c. Labor and Employment Team.
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