It can be hard enough to build up the courage to file a complaint at work. Whether you are raising a concern about harassment, unpaid wages, unsafe conditions, or a manager’s conduct, it can be a daunting situation. The stress and uncertainty only mount when HR responds by telling you not to discuss the situation with your coworkers.
Sometimes, the gag order is framed as though your employer is doing you some kind of favor: “for everyone’s protection, let’s keep this confidential.” In other situations, it is communicated as a hard-and-fast rule that, if violated, could result in punishment. Regardless of how these confidentiality mandates are handed down, the bigger question for many employees is: Is it legal?
The answer depends. Blanket confidentiality requirements are much less likely to be enforceable than those that are specifically tailored to an individual investigation.
At Justice Law Corporation, our California class action employment attorneys help working people across the state ensure that they are fully paid and protect their rights on the job. Our lawyers fight for employees in pay, discrimination, wrongful termination, and a wide range of other cases. We are seasoned litigators with a strong track record for holding large companies and other employers accountable, in and out of court.
An employer’s request for some discretion during an active workplace investigation is not automatically illegal. Still, an employer cannot simply have a standing policy dictating that “employees may not discuss ongoing investigations.”
Here is what you need to know.
Legitimate Confidentiality Rules
There are a number of reasons employers may want discretion regarding internal complaints and investigations. Some of the most common include:
- Protect the integrity of the process
- Encourage people to provide full and truthful information to investigators
- Discourage collusion
- Safeguard employees’ privacy
The biggest reason that many employers push confidentiality, however, is to protect against legal risks. HR works for your employer, not for you and your coworkers. Employers want to control internal investigations as much as possible to avoid their own legal liability.
Despite the limits on blanket confidentiality requirements, employers are not powerless to ensure some discretion during HR inquiries. A request for confidentiality tied to that specific investigation is more likely to be lawful if it is tied to a specific, legitimate reason. That may include:
- Protecting evidence from being destroyed,
- Preventing witnesses from coordinating their stories
- Shielding a witness from retaliation or intimidation
The key legal distinction is that the confidentiality requirement must be based on the employer’s individualized assessment of the situation. If HR simply told you to stay quiet without any explanation, that is not likely to be enforceable. Nor is a confidentiality mandate that appears verbatim in every investigation, regardless of the circumstances.
You Always Have the Right to Discuss Your Own Pay and Working Conditions
Employees in California have the right to discuss their wages, hours, and general working conditions with coworkers, even during pending HR investigations.
These kinds of discussions are considered concerted activity under the NLRA. More importantly, California law prohibits employers from requiring employees to keep their own wages secret or from disciplining them for discussing wages or working conditions. It also gives employees the right to help or encourage co-workers to inquire about wages.
The laws acknowledge that discussing pay and benefits is essential for working people to ensure they are not being shortchanged or mistreated on the job.
Your Protections Against Retaliation
Anti-retaliation provisions are a critical part of employment laws that help ensure workers’ rights to speak up, blow the whistle, and take action.
The laws generally ban employers from retaliating against employees who file HR complaints or participate in related investigations. They also go much wider, prohibiting employers from taking various punitive actions against workers for exercising their rights on the job. Such retaliation can include:
- Firing
- Demotion
- Suspension
- Loss of hours
- Schedule changes
- Exclusion from meetings, projects, or training sessions
- Sudden negative performance reviews
- Increased scrutiny
- Hostile treatment from managers
It is one thing for your employer to ask you to be discreet during an investigation, but it is another to retaliate against you for discussing the situation. If your employer disciplines, demotes, or otherwise punishes you specifically because you talked about your complaint with a coworker, this can qualify as retaliation.
What About Non-Disparagement or Severance Agreements?
The rules are often different when a confidentiality requirement is part of a severance agreement or settlement, rather than part of an active investigation.
These binding legal contracts can generally include confidentiality provisions that limit what employees can say. Except when it comes to settlements involving accusations of sexual assault, harassment, and discrimination in the workplace. If you are being asked to sign one of these agreements, it is crucial that you seek the advice of an experienced employment attorney first.
Our California Employment Class Action Attorneys Can Help
If you believe that your employer is violating your rights on the job, whether it is by being underpaid or in other terms and conditions, you do not need to go it alone. A California employment class action attorney at Justice Law Corporation can help you evaluate your claim and take action.
Our office is conveniently located in Pasadena. Contact us at (818) 230-7502 to schedule a free consultation with a California employment class action attorney.
