Federal agencies inch closer together on confidentiality in workplace investigations

A key aspect of most antiharassment policies is the employer's promise to “maintain the confidentiality of employee complaints to the extent allowable by law to conduct a thorough investigation.” Employers often ask employees involved in a workplace probe to refrain from discussing the details. Confidentiality has become a hot topic in recent years in part because of contradictory guidance given by the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) versus the National Labor Relations Board (NLRB).

EEOC's and OSHA's view of confidentiality

The EEOC and OSHA both consider confidentiality to be a valuable part of workplace investigations. Indeed, the EEOC suggests antiharassment policies should include “assurance that the employer will protect confidentiality of harassment complaints to the extent possible.” Likewise, OSHA has recommended practices for employers to institute antiretaliation programs, including ensuring the systems for reporting unsafe conditions provide a way to make confidential reports.

Consistent with the EEOC's and OSHA's view, many employers consider confidentiality critical to workplace investigations for many reasons, including to:

• Ensure the probe's integrity;
• Encourage prompt reporting of a range of potential workplace issues without employee fear of retaliation; and
• Protect employees—both complainants and those complained about—from dissemination of their sensitive personal information.

Confidentiality and the NLRB