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What you can say during a workplace investigation

If you are an employee who is under investigation for alleged misconduct or for reportedly harassing another employee, you may feel like your employer is simply out to get you. While this may not always be the case, it is natural for an employee under the microscope to want to discuss it among his or her peers.

 However, employers may want to keep such investigations confidential. While they may have legitimate, business-based intentions for doing so, what happens if you as an employee are reprimanded for discussing an open investigation? Imagine if you are under investigation for something that you want to dispute, but are subsequently terminated for discussing it with fellow co-workers who could vouch for your work ethic and demeanor?

Naturally, this would create a significant challenge for both employers and employees. Which is why disputes over what can be discussed in the workplace are litigated.

So who’s right; the employee or the employer? Of course, the answer depends on the specific situation. But as a general rule, employers cannot make blanket rules that prohibit employees from discussing investigations of employee misconduct or harassment; especially amongst themselves.

Such rules have been found to have violated Section 7 of the National Labor Relations Act, especially when they lack a legitimate business justification that outweighs an employee’s rights under the NLRA.

However, California courts have upheld some uses of confidentiality policies when they are implemented on a case-by-case basis when the circumstances warrant it.

If you are subject to a workplace investigation and have questions, an experienced attorney can help. 

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