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By Chris Opfer
Two federal agencies have discussed trying to resolve a rift over a central question highlighted in the #MeToo movement: Should sexual harassment investigations at work be confidential?
An Equal Employment Opportunity Commission task force says harassment probes should be kept as private as possible to encourage victims to come forward, guard against retaliation, and protect witnesses and persons accused of bad behavior. But the National Labor Relations Board in a 2015 ruling said workers’ "concerted activity” right includes the freedom to talk to each other about job-related complaints.
“Some victims want confidentiality, some want to blow the story open on a predator,” Brenda Feis, a Chicago attorney who represents mostly management-level workers in sex harassment cases, told Bloomberg Law. “By keeping victims in the shadows and not letting them know that there may be other victims out there, the Weinsteins of the world are able to thrive.”
The EEOC and the NLRB have had at least preliminary talks about threading a needle between their competing positions, sources tell Bloomberg Law. The extent of those discussions isn’t clear, but the idea is to give businesses a better idea of when they can force investigations to be on the hush.
The talks, which started under the NLRB’s previous general counsel, come amid growing public attention to sexual harassment stemming from allegations against high-profile figures, like Hollywood mogul Harvey Weinstein. That has emboldened victims of sexual assault and harassment to come forward and has sent businesses scrambling to shore up prevention and investigation efforts.
“The board’s decision is problematic because it makes it incredibly difficult to conduct investigations with the confidentiality that you need to protect the integrity of the investigation and protect the people involved,” Jonathan Segal, a Philadelphia attorney who represents businesses in harassment and other cases, told Bloomberg Law. “There is sometimes unwarranted shame that people who have been harassed feel and sometimes there is warranted fear of retaliation.”
The EEOC is the agency tasked with enforcing a federal ban on sex harassment in the workplace. Acting Chairwoman Victoria Lipnic (R) and Member Chai Feldblum (D) have made that a priority for the commission in recent years.
“Commissioner Feldblum has told us she is keen on seeing joint guidance from the two agencies so that employees can have clarity on this issue,” Sharon Masling, Feldblum’s chief of staff, told Bloomberg Law.
The NLRB enforces a separate labor law that gives workers the right to unionize and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” General Counsel Peter Robb signaled shortly after joining the agency last year that he wants to revisit the board’s approach to the confidentiality question.
An NLRB spokeswoman didn’t immediately respond to Bloomberg Law’s request for comment.
The case that brought the conflict to a head came in 2015, when the board considered unfair labor practice claims centering on an Arizona hospital worker who complained about being told to use hot water from a coffee machine to sterilize surgical equipment. The board’s Democrat majority said in Banner Health System that the hospital violated federal labor law by asking the worker not to discuss the situation with his colleagues while an investigation was pending.
An employer can require confidentiality in a workplace investigation only if it has a “legitimate and substantial business justification” that outweighs workers’ right to engage in concerted activity, the board said. That case-by-case analysis includes sexual harassment investigations, the board said, pointing to a separate 2002 decision in which the NLRB shot down a company’s blanket confidentiality rule.
“The Banner Health case in a way anticipates the #MeToo movement by saying, ‘Look, we need to break the veil of silence,’” Feis said. She added that the decision aligns with efforts to scrap forced arbitration and nondisclosure agreements that allow harassers to avoid public scrutiny.
Feis also said the board acknowledged that a business may have a legitimate interest in protecting confidentiality in certain situations. The Banner Health decision puts the burden on an employer to explain those reasons.
Critics say the board is forcing human resources officers to make complicated legal decisions based on the circumstances of each particular case.
“How can you really know at the outset whether you’re going to have a specific reason for confidentiality?” Segal said.
“If it’s a case involving nonconsensual touching, I don’t think you have to say, ‘Let me tell you why this is something you should be concerned about keeping confidential,” he added. “And, from a practical standpoint, what employer is going to say, ‘I’m telling you this because you’re the kind of person who may destroy evidence or be retaliated against?’”
Segal and Feis were part of the EEOC’s task force of lawyers, academics, and advocates brought together in 2016 to discuss workplace harassment. The EEOC’s Lipnic and Feldblum issued a report based on input from the task force some 16 months before allegations of sexual assaults by Hollywood producer Weinstein launched the #MeToo movement.
“Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable,” they wrote in the report.
Meanwhile, the NLRB may revise its stance on confidentiality in workplace investigations before any meeting of the minds with the EEOC. The board has moved to overturn a number of Obama-era decisions since Republicans took control of the NLRB late last year.
“We are returning already to a more normal view of what is protected concerted activity,” Mark Kisicki, who represented Banner Health in the NLRB case, told Bloomberg Law. “A sexual harassment complaint might implicate other employees, but that doesn’t mean that requiring confidentiality is inhibiting protected concerted activity.”
The NLRB in December loosened restrictions on general workplace rules that don’t immediately appear to infringe on workers’ concerted activity rights. Robb, in a memo interpreting that decision, said the board’s lawyers should look at the actual impact the rule has rather than its potential to limit protected activity.
Robb has also instructed the board’s regional enforcers to send cases involving the confidentiality issue to the NLRB’s division of advice.
Feis said one way to resolve the issue is to give employees the right to decide whether investigations should stay private. Kisicki suggested the board may limit the time period on gag orders or try to distinguish between complaints that raise workers’ collective concerns and those that focus on an individual employee’s rights.
“I think we’re going to see a much more reasonable balance that takes into consideration that an employee may not want everyone to know about it when they get investigated,” Kisicki said.
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