The federal labor board’s chief prosecutor wants to make it easier for companies to require workers to keep quiet about investigations of sexual harassment and other wrong-doing on the job.
National Labor Relations Board General Counsel
The move comes as companies continue to focus on rooting out workplace harassment in the wake of the #MeToo movement. The board’s current view—that gag orders on investigations violate workers’ rights to share information about their jobs—has put businesses between a rock and hard place, Jonathan Segal, a Philadelphia lawyer who advises employers on sexual harassment prevention, told Bloomberg Law.
“Would you rather be sued for telling people to respect the confidentiality of a person who had the courage to step forward or by employees who may want to gossip about it and inflict further harm?” Segal asked.
But gag orders can make it harder for harassment victims and other employees to get critical information about what’s going on in their workplaces, according to Debra Katz, a Washington, D.C., employment lawyer. Katz recently represented Christine Blasey Ford, who accused now Supreme Court Justice Brett Kavanaugh of rape when the two were teenagers, in testimony before the Senate Judiciary Committee. She also represents Vanessa Tyson, who recently accused Virginia Lt. Gov. Justin Fairfax (D) of sexual assault. Kavanaugh and Fairfax have repeatedly denied the allegations.
“The reality is that there’s safety in numbers,” Katz told Bloomberg Law. “If employees are aware several people are coming forward, they’re going to be more comfortable.”
Hush agreements also have been blamed for shielding high-profile abusers from public scrutiny. Alleged serial harasser Harvey Weinstein, for example, remained in a powerful Hollywood producer position for decades despite a wide range of rape, assault, and harassment accusations, in part by paying victims to keep quiet.
NLRB spokeswoman Cynthia Witkin declined to comment on Robb’s request.
Robb has been widely expected to take on the board’s limits on confidentiality requirements since he joined the agency in late 2017.
He’s particularly aiming at a board decision involving a safety investigation that’s been expanded to include harassment probes. The case was brought on behalf of an Arizona hospital worker who complained about being told to use hot water from a coffee machine to sterilize surgical equipment. The board’s Democratic majority said in the 2015 Banner Health System case that the hospital violated federal labor law by asking the worker not to discuss the situation with his colleagues while an investigation was pending.
The board explained that 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. 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 EEOC the same year convened a task force, which included Segal and Katz, to consider harassment in the workplace. That panel eventually concluded that “investigations should be kept as confidential as possible.” The EEOC in proposed guidance still on hold by the White House later said investigations should include “adequate confidentiality protections.”
Segal said one problematic scenario is when an employee complains that she was sexually assaulted on the job and identifies witnesses who later corroborate her allegations. Without confidentiality requirements, those witnesses can then tell co-workers what happened, even if their victim prefers they stay silent.
“Now the whole workplace knows,” Segal said.
Johnda Bentley, a lawyer for the Service Employees International Union, said gag orders can complicate cases in which a worker says he was wrongly fired for alleged sexual harassment. She said the union recently represented a fast food worker fired for engaging in organizing activity. Although the company said it fired the man for harassment, a colleague told NLRB investigators that she told the company the worker never harassed her, but rather a supervisor.
That’s why the board must look at confidentiality requirements on a case-by-case basis, Bentley said.
“There are times where confidentiality is warranted,” she said. “There’s a difference between two co-workers talking together in the workplace and them going out speaking to the world about it.”
Next Step on Workplace Rules
NLRB and EEOC officials discussed potential joint guidance to try to thread the needle between federal labor and workplace harassment laws, but those talks didn’t generate action.
Then the five-member NLRB, shortly after Republicans gained control in 2017, rolled back a separate Obama-era decision. In a case challenging a “no camera” rule at a Boeing facility outside of Seattle, the board said companies can impose general workplace conduct restrictions without violating workers’ labor rights.
Now Robb is looking to take that decision a step further in a case involving a retail thrift store chain owner that requires workers to cooperate with investigations into “illegal or unethical behavior” on the job and to keep those investigations confidential. He wants the board to generally give a thumbs up to confidentiality requirements without looking at the particular circumstances of any given case.
“On the narrow issue of confidentiality in workplace investigations, the board seems to stand alone in its current, single-minded adherence to the notion that its expansive and questionable vision of rights under the NLRA should trump the countervailing federal and national interests reflected in the employment statutes administered by other agencies,” Dorit Radzin, a lawyer in Robb’s office, recently told the board.