In Part 1 of the series reexamining harassment policies and procedures, we looked at common harassment investigation missteps and how to correct them. In Part 2, we examine confidentiality policies.

Employers often defend Title VII harassment claims by showing that they exercised reasonable care to prevent and correct harassing behavior. A key aspect of reasonable care requires an employer to have an anti-harassment policy that, according to the EEOC, “should contain, at a minimum” six elements including an “assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.”

At the same time, the NLRA prohibits employers from maintaining blanket confidentiality rules that prohibit employees from discussing workplace investigations. In Banner Estrella Medical Center, 358 NLRB 809 (2012), the NLRB found that an HR consultant violated the NLRA by routinely asking employees not discuss ongoing investigations with their coworkers. To lawfully require confidentiality of employees, an employer must show a legitimate business justification specific to the investigation at issue, such as the need to protect witnesses or prevent tampering with evidence. That remains the law today, despite the NLRB’s recent shift on employer policies.

So how’s an employer to reconcile those seemingly conflicting laws? Continue Reading Confidentiality Policies that Survive EEOC and NLRB Scrutiny: Reexamining Harassment Investigation Protocol Part 2

Following the recent wave of sexual harassment and assault allegations, a wake of news stories emerged about how HR departments have failed to conduct proper investigations into such complaints. Women claimed HR failed to write down their complaints or take any action; one woman claimed HR told her “We don’t want to get involved in this.” The stories asserted that HR “is supposed to protect the company’s interests,” not the employee’s.  But as any experienced employment lawyer or HR manager knows, HR cannot protect the company if it conducts a subpar investigation.

Two of the most common harassment investigation missteps include (1) using investigators that lack sufficient training about how to conduct an investigation, and (2) failing to involve legal counsel at the right time.

Continue Reading Reexamine Your Company’s Harassment Investigation Protocol in Light of #MeToo