The federal Equal Employment Opportunity Commission has recently added procedures that could force employers to release position statements and non-confidential attachments to those accusing them of wrongdoing - potentially including labor unions - on request. These changes in normal procedure have created a sense of concern for employers, as they contemplate what kinds of information could be disclosed by federal regulators.
Maxine Neuhauser, a lawyer who practices in the areas of labor and employment law, among other areas, at the firm of Epstein Becker & Green in Newark, N.J., said the new policies will have implications for employers.
"It's a policy, so it's not strictly speaking a regulation, but I think that it has the potential for making information that would otherwise not be publicly disseminated easily publicly disseminated," Neuhauser said.
The changes which have taken place will change the way in which employer information is disclosed, as the EEOC will only refuse to share information the commission considers confidential. Information which could potentially be disclosed to charging parties under the new policies could include trade secrets, financial information and information which can make individuals personally identifiable, including medical information, birth dates, home addresses and Social Security numbers.
Additionally, the EEOC will only consider information confidential if the information is supported. Employers have been instructed to introduce their confidential information along with their personal statements and to label them accordingly to ensure protection. The labels may be as follows: Sensitive medical information, confidential commercial information, confidential financial information or trade secret information.
The classification will be useful as EEOC considers requests for information to remain confidential. These requests are filed with the understanding that, upon review, the EEOC retains the right to refuse to consider the information confidential.
"It leaves in the hands of the EEOC the determination as to what is public or confidential and what is not," Neuhauser said. "As the policy or the program is written, it speaks in terms of EEOC staff may redact confidential information as necessary, prior to releasing information to a charging party."
Neuhauser believes that employers should be cautious about what they are disclosing to the EEOC. If a company has valuable trade information, they ought to designate it as such and be wary of oversharing their information, as failure to specify what information is private could become publicly available. She suggested sharing the necessary information, but being careful about classifying it in a way that such information is protected.
"It's not about being difficult, it's not about being noncompliant or cunning, it's really a matter of managing the information and recognizing that when you give it to the government it loses an amount of protection," Neuhauser said.
Additionally, the EEOC, according to Neuhauser, encourages employers to electronically submit their information, which Neuhauser cautions against, due to the tendency of electronic information to be leaked.
Employers have been advised to review the EEOC's new policy so that they will be prepared concerning the information and procedure for presenting it. Neuhauser said the policy should solidify the reality that employers should not assume that their information is private, and because of this, employers ought to take an extra degree of care in the filing of their information.