When an employee complains to the human resources department that she’s the victim of sexual harassment, the proper course of action for the employer is to investigate the complaint. But once the investigation is complete and no evidence is found to support the accusation, it’s time to move on. Unfortunately, even the most thorough investigation may not end the matter. 
Recently attorneys focusing on workplace issues were asked what to do about an employee who made an accusation and won’t stop talking to coworkers even though the employer’s investigation found no evidence to support her claim. The complaining employee continues to discuss the situation with other employees, and all the talk is disruptive and reflects poorly on the person accused. The employer asks whether it’s OK to tell the employee to stop talking about it.
Probably not, according to the attorneys.
“It’s rarely a good idea to tell an employee to shut up when she is talking about her own circumstances or experiences,” says Jo Ellen Whitney, an attorney with the Davis Brown Law Firm in Des Moines, Iowa. She points out that the National Labor Relations Board (NLRB) has issued guidance taking a strong stand on Section 7 of the National Labor Relations Act (NLRA).
The language in Section 7 guarantees employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Discussions of conditions of employment—such as allegations of harassment—qualify as “concerted activities.”
“The Board has indicated that employees have the right to discuss the core elements of their employment, including their own discipline, investigations, and issues in which they are involved,” Whitney says. “Telling an employee that she must keep an investigation or disciplinary matter confidential can lead to a Section 7 claim with the NLRB.”
If the situation continues to worsen, the complaining employee’s refusal to let the issue go may affect her ability to be productive at work, especially if she spreads her complaints to customers and clients, Whitney says. In that case, HR needs to have a conversation with the employee informing her that her “continuing focus on the issue is hampering teamwork and interfering with job performance and productivity,” she says, adding that care must be taken so that the conversation doesn’t violate Section 7 of the NLRA.
The situation may also implicate Title VII of the Civil Rights Act of 1964, which covers sexual harassment and prohibits retaliation against employees making harassment claims “whether they’re right or wrong,” H. Mark Adams, an attorney with Jones Walker LLP in New Orleans, Louisiana, says.
The NLRA Section 7 issue is of particular concern, though. Adams says the Obama administration “is on a crusade to expand the definition of ‘protected concerted activities,’ particularly in nonunion workplaces.” He says the NLRB has made it clear that it views protected concerted activities as including an employee discussing a harassment claim and complaining about the way it was or is being handled by the employer.
“While there are exceptions to NLRA protections for employee conduct that becomes disruptive or violates other legitimate work rules, the exceptions are shrinking,” Adams says. “So it’s best to consult your labor counsel before attempting to silence your employee or taking any other action against her,” he says.
Jason Ritchie, an attorney with Holland & Hart LLP in Billings, Montana, agrees that the NLRA may present a problem and that attempts to muzzle the complaints “would likely be deemed an unfair labor practice.”
“Your best course of action is to meet with the employee as a follow-up to your investigation,” Ritchie says. “Explain that you didn’t find evidence to support her harassment claim, but you need to know if any additional potentially harassing conduct occurs. If she raises any new concerns, investigate them. If not, reinforce your organization’s commitment to keeping the workplace free from harassment. It may not completely stop the employee from talking about it, but your proactive steps in following up with her to ensure that no harassment is ongoing will help you prevent charges of discrimination, retaliation, or unfair labor practices.”