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Utah SHRM- Investigation Confidentiality Instructions Questioned
Posted on Sep. 5, 2012

This is Utah SHRM Legal-mail no. 2012-18 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).








INVESTIGATION CONFIDENTIALITY INSTRUCTIONS QUESTIONED:  The National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) have issued separate statements calling into question the legality of blanket employer instructions given to employees to keep workplace investigations confidential. The NLRB recently decided that an employer’s complaint policy that required an employee not to talk with co-workers about his/her workplace complaints during an investigation violated the National Labor Relations Act (NLRA) rule allowing employees to discuss workplace conditions with each other. This ruling applies in both union and non-union settings. The NLRB said that rather than using a general blanket rule, an employer should only give such a confidentiality instruction in specific and individual cases where there is an established need to protect witnesses, avoid spoliation of evidence or fabrication of testimony or to prevent a cover-up. Employers probably should document specific findings of these possible problems before giving any confidentiality instructions and may want to update their policies to explain when such confidentiality instructions will be given. The EEOC’s critique of confidentiality instructions came in the form of a recent letter from a field office sent to an employer asserting that its confidentiality policy violated employee rights. One of the issues the EEOC seemed concerned about was that the employer’s confidentiality policy was so broad it might be interpreted by employees as preventing them from going to the EEOC with complaints. Unlike the NLRB ruling, the EEOC letter does not have the force of agency law yet. Certainly, an employer should make sure that management and/or HR are not breaching the confidentiality of an employee’s complaint. However, the NLRB ruling alone should give employers pause before issuing confidentiality instructions to individual employees themselves. Various commentators are opining that it still may be safe to ask employees not to discuss the actual investigative interviews, given that this instruction still allows employees to discuss the underlying conduct with co-workers. This is probably one of those situations where the company’s employment lawyer should be consulted before a confidentiality instruction is given. It also is likely we may get further clarifications from the NLRB and/or the EEOC on this particular issue.

MANDATED COUNSELING COULD CREATE ADA RISKS:  A new federal court ruling from the Midwest indicates that mandated counseling may create risks of a violation of the Americans With Disabilities Act (ADA). The case involved an employee who worked as an emergency medical technician (EMT) for an ambulance company. The employer received reports that the EMT was engaging in erratic behavior and emotional outbursts on the job and might be contemplating suicide. Thus, the employer told her she could not return to work unless she got counseling from the company’s EAP or a mental health provider of her choice.  The employee refused to get counseling, quit, and filed a lawsuit.  The court ruled that the mandated counseling was a medical exam under the ADA and could only be justified if job-related or necessary to the operation of the employer’s business. The employer will have to prove these points at an upcoming trial.

I-9 FORM EXPIRES BUT CAN BE USED:  The current I-9 form expired as of August 31, 2012.  The United States Citizen and Immigration Services (USCIS) agency is expected to issue an updated form and in the past, employers have been safe to use the expired form until an updated one is issued. USCIS has posted a notice on its website that it will follow this past practice, see:

NEW FCRA FORMS TO BE ISSUED:  Speaking of forms, the federal government will be issuing new forms for use in background checks by January 1, 2013. The forms are required for compliance with the Fair Credit Reporting Act (FCRA), which was discussed in detail in my last email update. The forms to be modified include the statement of rights employers give to employees (notably when taking adverse action based on a consumer report), the notice to users of consumer reports of their obligations and the notices given to furnishers of information. 

EMPLOYMENT LAW BRIEFS:  The United States House of Representatives has passed a measure prohibiting the federal government from issuing any new significant workplace regulations until the unemployment rate drops below six percent. The measure is unlikely to pass in the Senate. A bill has been introduced in the Senate seeking to increase the minimum wage to $9.80 per hour in three steps over the next two years.  This bill is not expected to pass either the Senate or the House. Finally, a national retailer has agreed to pay over $2 million to settle an EEOC discrimination lawsuit.  The case involved two plaintiffs--an employee who received numerous “sexting” cell phone text messages from a manager, and her supervisor who was fired after reporting the manager’s misconduct. The EEOC called it one of the largest settlements ever in an individual case (as opposed to a class action). I bet the involved perpetrator-manager did not text out that bit of news.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

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OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012