During an internal investigation into complaints by or about employees, confidentiality issues are often unavoidable. The investigator (whether in-house counsel, a human resources professional or outside counsel) should be prepared to handle them.
Confidentiality issues typically arise when a witness requests confidentiality. Other times, the employer or the investigator determines that confidentiality is necessary. Appropriately handling confidentiality issues is an important part of a successful investigation.
Witness requests for confidentiality
It is not uncommon for a witness to tell an investigator during an interview, “I can tell you what happened, but you can’t tell anyone” or “you can’t tell my supervisor” or “I don’t want anyone to know that I told you.” A key rule for investigators to follow is: Don’t promise anyone anything. When it comes to requests for confidentiality, that rule is particularly important for three reasons.
First, conducting an investigation sometimes requires you to disclose information that directly or indirectly reveals the source. For instance, if you are investigating whether a supervisor used a racial slur during a one-on-one meeting with an employee, it may be impossible to thoroughly investigate the allegation without revealing to the supervisor the identity of the employee. Indeed, the supervisor may be unable to fully respond to the allegation without knowing all of the details.
Second, if you are conducting an investigation on behalf of your employer or you are an outside attorney whom the employer retained to conduct an investigation, then – even though you are conducting an independent investigation – you technically represent the employer. Therefore, the employer will arguably be deemed to have full knowledge of information that a witness provides to you, even if you do not share it with the employer. By failing to disclose information to the employer, you may expose the employer to liability for failing to take action in response to that information. If you are an attorney, you may also have an ethical duty to divulge the information.
Third, at the conclusion of your investigation, you will usually set forth your findings in an investigation report. That report will include the allegations you investigated and the material information you received during the course of your investigation. You cannot omit that information from the report because a witness asked you not to disclose it. After you submit your report, however, you will not have control over what the employer does with the report or the information contained in it. If you promised to maintain the confidentiality of information, you will be unable to keep that promise.
In short, you cannot promise to keep information confidential. If a witness offers to divulge information to you only if you promise confidentiality, you must convince him or her to divulge the information without the promise. When facing that challenge, bear in mind that individuals who genuinely want to withhold information will simply tell you, “I don’t know” or “I don’t remember.”
In contrast, an individual who requests confidentiality as a condition of providing information typically wants to provide the information. As an investigator, the challenge is to persuade the reluctant witness to disclose information without a promise of confidentiality. Achieving that goal is easier if you understand the reason for the person’s concern about confidentiality.
A concern about confidentiality is typically motivated by fear of retaliation. To the extent that you can convince the witness that the employer will not tolerate retaliation, you can often alleviate his or her concern about confidentiality, even while you decline to promise confidentiality.
Before conducting witness interviews, one point that an investigator should emphasize to the employer is that the employer must not tolerate retaliation. Most employers understand and agree with this concept. After all, most employers would agree that a workplace in which employees feel free to raise issues without fear of retaliation functions better, and has less legal exposure, than a workplace in which employees are afraid to speak up.
After confirming that the employer will not tolerate retaliation, the investigator should, during the investigation, emphasize to every witness that the employer has offered assurance that it will not tolerate retaliation. A witness who trusts that the employer will not tolerate retaliation will be less concerned about confidentiality and more likely to speak freely to the investigator.
Of course, you should be sensitive to the person requesting confidentiality and make reasonable efforts to avoid unnecessarily placing someone in an uncomfortable position. However, you should not promise confidentiality. Instead, convey the employer’s assurance that retaliation will not be tolerated. Doing so will often satisfy a reluctant complainant or witness, even without a promise of confidentiality.
Employer and investigator requests for confidentiality
Confidentiality issues also arise during an investigation when the employer or the investigator instructs witnesses not to discuss the investigation in the workplace. There are several possible legitimate reasons for issuing this type of instruction.
For example, the employer or investigator may determine that, under the circumstances, confidentiality:
- Encourages employees to raise complaints and participate in investigations;
- Protects employees from retaliation and unfounded rumors;
- Protects the integrity of the investigation by, for instance, preventing witnesses from aligning their stories.
Nonetheless, the National Labor Relations Board (“NLRB”) has taken the position that confidentiality requirements may violate Section 7 of the National Labor Relations Act, which protects the right of employees to engage in concerted activity.
Given the NLRB’s position, an employer’s blanket confidentiality requirement for all investigations is risky. However, in a particular investigation, if the investigator decides that legitimate reasons justify a confidentiality requirement, then it is appropriate to direct witnesses not to discuss the investigation in the workplace. You should only issue this instruction after concluding that a legitimate justification exists under the circumstances of the case. In issuing this instruction to witnesses, be sure to explain the reasons for the instruction.
In conclusion, an internal investigation is the best way for an employer to get to the bottom of a personnel issue. Appropriately handling the confidentiality issues that typically arise is an important key to ensuring that an investigator uncovers the facts needed for a successful investigation.
Editor's note: This is a guest contribution from William Horwitz, employment counsel at Drinker Biddle & Reath.