Confidentiality in Investigations

posted in: People 0

Conducting an HR investigation, such as one for a harassment claim, has gotten a lot trickier recently. In the past, investigators usually told everyone involved not to share information about the investigation with anyone else while the investigation was pending, in order to protect the privacy of the people involved in the case. This is nicely in line with the right to privacy articulated in the Montana Constitution, and seems fair to both accused and accuser.

However, the EEOC has picked up on a ruling by the NRLB  and issued a (non-binding) predetermination letter saying that blanket confidentiality rules violate the NLRA (which applies to most workplaces, not just unionized ones) by preventing employees from discussing the conditions of their jobs.

The NLRB stated that in order to minimize the impact on employee rights under the NRLA, the employer must “first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated or there was a need to prevent a cover up.” The NLRB found that a “blanket approach clearly failed to meet those requirements.” As a result, it decided that a rule prohibiting employees from discussing ongoing investigations of misconduct violated the law.

So now the State of Montana says that your employees have a right to privacy but the EEOC says that you can’t protect it. Better than that, the EEOC also says, involving harassment cases, that the employer should “protect the confidentiality of harassment complaints to the extent possible…”.

The first thing to do is to ensure that you don’t have to investigate any claims until the agencies or courts get this worked out. Since that is unlikely, each investigation should be evaluated for a specific legitimate business reason for keeping information confidential (not just protecting the investigation’s integrity or accused’s reputation), and this should be well documented. Review your employee handbooks for blanket confidentiality policies and talk to an employment attorney about how to handle the issue when a case comes up.


Sources: GVHRA Cut and Paste Nov 2012, SHRM website