Sexual Harassment Lawyer Blawg
When a Costco Wholesale employee in Newport News, Virginia filed an EEOC charge alleging mockery of his Arabic accent, derogatory comments and gestures making fun of his “smell,” his coworker spraying Lysol at him, and other racial harassment, COSTCO asked him to sign a company “Confidentiality” form as part of its investigation—but the National Labor Relations Board, or “NLRB,” has already decided COSTCO’s form violates federal law.
On May 9, 2025, the Store Manager at the Newport News location approached “Jay,” the employee who filed the charge. He presented Jay with a form called “Acknowledgement of Confidentiality for Investigations.” The Manager read the form out loud and asked Jay to sign it. Among other things, it included this language:
I have not recorded any part of this interview and I acknowledge that electronic recordings of any conversation without the consent of all parties is considered a violation of company policy and may result in disciplinary action up to and including termination.
…I agree to maintain confidentiality regarding this ongoing investigation….
I understand that any violation of this Acknowledgment may result in disciplinary action up to and including termination…
But the NLRB, the government agency that enforces American labor laws related to unfair work practices, already has decided that COSTCO’s form—the very one Jay was told to sign—violates the National Labor Relations Act, the law that protects employees’ rights to work together to advocate for better working conditions.
The Board explained that employees have “the right to discuss their terms and conditions of employment, including….their right to discuss potential workplace harassment, to solicit the assistance and support of others in filing and pursuing such harassment complaints, and/or to discuss the employer’s response to those complaints.”
The Board decided that several parts of COSTCO’s form—including the paragraphs “I agree to maintain confidentiality regarding this ongoing investigation….I understand that any violation of this Acknowledgment may result in disciplinary action up to and including termination…”—have a “reasonable tendency to chill employees” in exercising those rights. It found that reasonable employees could think the form stops or limits them from doing things like gathering and sharing information about what happened that caused them to make the complaint, asking for other employees’ help on the complaint, and talking about how COSTCO responded to their complaint. The Board decided that reasonable employees could even understand the form to mean they have to keep this information confidential forever, even when the investigation is over.
The Board also decided that another part of COSTCO’s form violates the law—the part banning making recordings at work with this language: “I have not recorded any part of this interview and I acknowledge that electronic recordings of any conversation without the consent of all parties is considered a violation of company policy and may result in disciplinary action up to and including termination.” The Board said that “audio recordings are protected by [federal law] if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.”
In an earlier decision, Whole Foods, the NLRB held that employees had to be allowed to record because they might need the recording as evidence in a proceeding challenging the “terms or conditions of employment,” which is exactly the type of EEOC proceeding Jay has brought (challenging racist harassment).
If you have information about COSTCO continuing to try to get employees to sign this form that the NLRB already found violates the law, or preventing employees from recording concerning discrimination or harassment claims, please contact us at 212-308-4338, email attorney@employmentlawfirmpc.com, or fill out a form on our website.