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Blanket confidentiality policies may violate law by Davis & Kuelthau, s.c. Tony Renning


If you have a particular labor/employment law question, forward it to Mr. Renning at If he responds to your email in a future issue, your name and company will be withheld to preserve your privacy.

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-

Sean Fitzgerald

Publisher & President

Carrie Rule

Sales Manager

Kate Erbach Production

Contributing writers

Robin Driessen Bruecker Lee Marie Reinsch Chief Financial Officer

Vicky Fitzgerald, CPA

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-

NEW NORTH B2B is published monthly by WINNEBAGO B2B LLC for $20 per year or $3.95 for a single issue. A single complimentary subscription is offered to all members of the Fond du Lac Area Association of Commerce, Green Bay Area Chamber of Commerce, Heart of the Valley Chamber of Commerce, and the Oshkosh Chamber of Commerce. Printed by Digicorporation, 120 Lake St., Neenah, WI 54956 POSTMASTER: send address changes to: WINNEBAGO B2B LLC 923 S. Main St., Oshkosh, WI 54902. Bulk-rate postage paid at Oshkosh, WI. Reproduction of any contents of NEW NORTH B2B without express written permission of its publishers is strictly forbidden. The appearance of any advertisement or product information does not constitute endorsement of any product or service by WINNEBAGO B2B LLC. Copyright 2012.

Contact us: P.O. Box 559, Oshkosh, WI 54903-0559 • 920.237.0254

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 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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Fond du Lac NEW NORTH B2B l OCTOBER 2012 l 5

October 2012  

Regional business magazine

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