NLRB, EEOC challenge confidential internal investigations

Experts say employers should determine confidentiality on a case-by-case basis to avoid liability

When James Navarro arrived at his job as a medical equipment technician one morning in February 2011, something wasn’t right. Due to a broken water pipe in the Arizona hospital where he worked, employees didn’t have steam and hot water to follow their normal protocol for sterilizing surgical equipment. Navarro’s supervisor instructed him to use a different sterilization machine and get hot water from the break room coffee maker. Concerned about patient safety, Navarro refused to follow his supervisor’s instructions and complained about the problems to his co-workers.

The supervisor reported Navarro to human resources. Finding that Navarro had been insubordinate, the hospital issued him a nondisciplinary coaching. Shortly thereafter, Navarro received a subpar performance review.

Overlapping Concerns

The decision is of major concern to employers because a host of different laws, including Title VII of the Civil Rights Act of 1964, the Sarbanes-Oxley Act, securities laws and the Foreign Corrupt Practices Act, require companies to conduct investigations when they receive a report of wrongdoing. For instance, when confronted with allegations of sexual harassment, Title VII imposes liability if the employer does not conduct a thorough investigation and take prompt remedial action.

Adele Nicholas

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