Imagine you are the Human Resources Manager at one of the “Top 100 Best Workplaces” in the state and that your company has a state of the art anti-harassment / anti-discrimination policy. You train all your employees about this policy every year demanding that employees treat each other with dignity and respect and have worked very hard to create a work environment where all employees know about, understand and believe that the company is sincere about providing a harassment/discrimination free workplace.
This morning, Jeff, one of your valued long-term employees, reported to you that Sarah, the CEO, has been making sexual advances toward him. Recently, Sarah has ramped up her efforts to “bed” Jeff through Snapchat. Jeff has been taking screen shots of the Snaps that Sarah has been sending and he provides you with the screen shots of those Snaps. It’s your lucky day.
However difficult this will be, you know you have to investigate the harassment allegations. You gather additional information from Jeff and indicate that consistent with company policy, it does not matter who the alleged harasser is; the company will conduct a fair, appropriate and timely investigation and will take appropriate disciplinary action if the allegations are proven. You remind Jeff that consistent with company policy, and in order to effectively investigate this sensitive matter, Jeff must keep his allegations confidential or be subject to disciplinary action up to and including termination. Before Jeff leaves your office, you remind him again not to disclose his allegations to any other employees and/or anyone else in order to allow the company to effectively investigate the matter.
Have you just violated federal law?
The National Labor Relations Board (NLRB) would answer: Yes! Seems contrary to common sense and seems to undercut the ability to conduct a fair, appropriate and timely investigation. Nonetheless, in Banner Health System, 358 NLRB No. 93 (July 30, 2012), the NLRB held that Banner’s blanket practice instructing any employee who made a complaint not to discuss the matter with co-workers during the company investigation violated federal law. The NLRB held that the practice prohibited employees from their right to engage in “protected concerted activity” for “mutual aid and protection.” This NLRB case and other legal / practical issues require that employers constantly keep aware of the most effective means to conduct fair, appropriate, timely and legal harassment/discrimination investigations.
Contributed by Jeff Fraser, Miller Johnson.
View the on-demand webinar “Harassment Complaint Investigations: The Nuts & Bolts" with Jeff Fraser.