Connecticut Employment Law Blog Insight on Labor & Employment Developments for Connecticut Businesses

What’s New at the EEOC and NLRB? Your “Confidential” Investigation Is At Risk

Posted in CHRO & EEOC, Discrimination & Harassment, Labor Law & NRLB, Wage & Hour

Two stories over the last few weeks have been percolating that may be of interest to employers in Connecticut.  You may not see the impact immediately, but the implications are certainly there.

First, the EEOC is now looking to conduct more direct investigations — that is, investigations that are initiated without any claim by an employee or former employee — to see if gender-based pay bias is out there. 

As reported by Employment Law Daily:

In an effort to combat gender-based pay discrimination, the commission has launched pilot programs at three of its district offices to figure out the best approach to using its authority to conduct direct investigations — investigations initiated without any prior charge of pay discrimination — to determine whether Equal Pay Act violations are occurring.

The article goes on to note that the agency is also looking to see if it can use its authority to root out discrimination based on sexual orientation. That will have less impact in Connecticut, where the laws preventing discrimination on the basis of sexual orientation and gender identity are already on the books. 

Second, the NLRB recently issued a decision that calls into question whether an employer can instruct employees to keep an investigation confidential and not discuss it with co-workers.  It left Jon Hyman, from the Ohio Employer’s Law Blog, “speechless”, who noted today that the EEOC is also taking the same position. 

Numerous blogs have recapped the decision.  Here are a few to take a look at:

  • The In-House Advisor blog was quick to note that the NLRB’s admonition isn’t absolute and that an employer may be justified if: a witness needs protection; evidence is at risk of being destroyed; testimony is in danger of being fabricated; or there is a need to prevent a cover-up.
  • The veteran Employer Law Blog says that the “the NLRB’s position puts employers in a tough spot. How do you protect the integrity of an ongoing investigation without asking witnesses to maintain confidentiality at least while the investigation is ongoing? Employers should treat each investigation on an individualized basis. If a decision is made to request confidentiality during an investigation, the employer should document its specific business reason for requesting confidentiality in that case. “
  • The New York Labor & Employment Law Report also does a nice job summarizing the key points.

For employers returning from their summer vacations, these new developments may just make your fall a little more interesting.