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Recent case hints at real-world consequences of NLRB’s stance on confidentiality rules

September 25th, 2013  |  Lisa Milam

By Lisa Milam-Perez, J.D.

The NLRB’s position that employers may not attach blanket confidentiality policies to internal investigations poses a variety of challenges for employers. Chief among them: employers have a conflicting legal obligation to protect the confidentiality of employees who make complaints, according to an EEOC Enforcement Guidance. Talk about a rock and a hard place.

On the other hand, the NLRB rightly is concerned about a blanket gag order. Employees may need to converse with coworkers about their harassing boss or other issues of mutual concern without fear of reprisal. Indeed, this notion is at the very heart of the NLRA.

Yet confidentiality serves employees’ interests, too—as we are reminded by the allegations in a recent Fifth Circuit case. Granted, the plaintiff wasn’t the ideal poster child for the cause. And she had little evidentiary ground to stand on. But had her story rung true—and it well could have—it stood to offer an important glimpse at the real-life consequences of a breach of confidentiality.

Complaints, and more complaints. The employee was interviewed by an HR official in the course of an investigation into complaints against three supervisors at her work site. She was not the source of the initial complaint that prompted the investigation; however, she was one of several individuals who attested to the supervisors’ inappropriate conduct. After completing the investigation, the HR official recommended that the supervisors be discharged, and they were.

Two months later, the employee came to the HR official to complain about her coworkers, who apparently were miffed about her “whistleblowing,” she said, and acting inappropriately toward her. The HR official interviewed several of the employee’s coworkers about her complaints, but these interviews cast doubt on her accusations. They also elicited a good deal of negative feedback about the employee’s own behavior. Ultimately, the HR official concluded that she had made false accusations about a coworker because she believed he had interfered with her getting overtime hours. The official also determined that the employee was a divisive force, who had told some coworkers not to associate with certain other employees. Accordingly, the HR official recommended that she be fired.

Contending that she was terminated in retaliation for her complaints about her coworkers, the employee filed a retaliation suit under Title VII. The district court assumed, without deciding, that the complaints constituted protected activity, but it granted summary judgment to the employer nonetheless. With nothing more than temporal proximity to offer by way of causation, the employee failed to rebut the employer’s legitimate, nondiscriminatory reason for her discharge, the lower court held. Finding no error, the Fifth Circuit affirmed.

No cat’s paw here. Nor could the employee establish a retaliatory motive underlying the decision to terminate her. Although she conceded there was no evidence that the HR official who carried out her discharge harbored retaliatory animus, she asserted that the HR official was swayed by her coworkers’ retaliatory machinations. Specifically, she contended that the second HR investigation (launched in response to the employee’s complaints) had been unduly influenced by her coworkers. But she based this assertion entirely on the fact that the HR official had relied on her coworkers’ “negative feedback” in deciding to discharge her.

While the plaintiff urged that her fellow employees saw her as a “whistleblower” for her participation in HR’s investigation of the supervisors’ misconduct, there was no evidence they perceived her as such, especially given that she was not the individual who triggered that investigation, and she was only one of several employees to speak with HR during the course of the deliberations. Also lacking was evidence suggesting any animus on her coworkers’ part based on the earlier investigation, or proof that any of her coworkers actually recommended that she be fired. And while the employee contended that the HR official was mistaken in believing the negative feedback about her, the official’s belief was, by all accounts, a sincere one. Thus, the employee could not show that retaliatory animus was the “but-for” cause of her discharge.

Worth pondering. The employee offered no theory as to how her detractors came to know the contents of her discussion with the HR official. If her story were to be believed, might she have been saved of her fate if she and the other witnesses had been sworn to silence?

In order to enforce a confidentiality provision in the context of an investigation, the NLRB requires that an employer first determine that a witness was in need of protection; evidence was in danger of being destroyed; testimony was at risk of being fabricated; or there was a need to prevent a cover-up. Would the employer have had any reason to think those scenarios might have applied here?

With the Board having left the witness unshielded, what recourse would she have in this case under the NLRA—where the alleged retaliation was not at the hands of a statutory supervisor?

The underlying investigation in this case centered on complaints of discrimination against the supervisors. Theoretically, then, the employee had a Title VII cause of action. But what if HR was investigating suspicions of theft against a beloved supervisor? Would your average public policy wrongful discharge claim be expansive enough to protect an employee from the wrath of a firing instigated by disgruntled coworkers?

Interesting questions to ponder. And a useful glimpse at the potential real-world implications for employees of an unpopular NLRB directive.