Employers Can’t Guarantee Complete Confidentiality in Investigations

Allen Smith, J.D. By Allen Smith, J.D. November 3, 2022
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Graphic of someone walking a tightrope

​Protecting the confidentiality of complainants and others participating in workplace investigations is a tightrope act for investigators. They need to provide assurances of confidentiality to the extent possible without guaranteeing complete confidentiality. This article provides tips on walking this fine line. A previous piece provided other tips on planning workplace investigations.

"Employers cannot guarantee that an investigation will stay confidential," said Gillian McKean Bidgood, an attorney with Polsinelli in Denver. But they can and should take appropriate steps to keep the investigation confidential to the extent possible so that witnesses do not coordinate or confuse their memories by discussing the events, she added.

"Additionally, keeping investigations confidential is important to avoiding damage to the company and employees if the investigation concludes that an impropriety did not occur," she noted.

Virtually everyone involved in an investigation is concerned about confidentiality, so the employer and investigator should understand this from the start, said Julie Moore, SHRM-SCP, a lawyer with and president of Employment Practices Group in Wellesley, Mass. "Before the investigation commences, discussions should take place about who will be told, who will be involved, where interviews will be conducted and what steps will be taken throughout the process to ensure the investigation is kept as confidential as possible," she said.

Policy Statements

Even before the investigation, policies should be in place—either in the code of conduct or elsewhere—that require employees with potential knowledge of violations of policy or the law to cooperate in the employer's investigations, said Toni Michelle Jackson, an attorney with Crowell & Moring in Washington, D.C. This requirement should be coupled with appropriate statements about confidentiality, she noted.

"I see a lot of employee handbooks that imprudently promise complainants confidentiality or near confidentiality if they raise complaints through the employer's prescribed process," said Martha Boyd, an attorney with Baker Donelson in Nashville, Tenn. "When I am revising these handbook provisions, I do so with an eye toward narrowing any promises of confidentiality."

Need to Disclose

The employer typically has significant incentives to keep the investigation as confidential as possible, Boyd noted, but may need to disclose information learned during the investigation to:

  • Defend the termination of the subject of the investigation.
  • Demonstrate to the complainant or to the U.S. Equal Employment Opportunity Commission, state civil rights agency or a court that the matter was promptly and thoroughly investigated.
  • Respond to a "discovery" request in another case.

"The employer should qualify any representation that the investigation will be kept confidential to account for these types of potential scenarios," Boyd said.

If a disclosure is necessary, employers should consider what the minimum information needed to be revealed is, according to Thomas Johnson II, an attorney with Faegre Drinker in Philadelphia.

For instance, he said, if the investigator needs a video recording of employees in the workplace, the investigator may need to reveal the date, time and place of the recording to security, but not much else.

In contrast, if the investigator needs to review e-mails between an employee alleging harassment and the alleged harasser, the investigator may need to reveal more to IT, including the identities of the individuals and other details, but not necessarily every detail of the allegations or the investigation, Johnson added.

It is often necessary to disclose facts to individuals in IT, finance or other areas to gather specialized information and documents necessary to evaluate certain claims, including electronic messages, time cards and expense reports, Johnson noted. In addition, a witness will need to know at least some of the information in the complaint or learned as part of the investigation in order for the witness to provide information about or respond to an allegation, he said.

There also might be circumstances where an employer may want to strategically reveal confidential information to a witness to test credibility or to obtain a reaction to that information, added Philip Kontul, an attorney with Ogletree Deakins in Pittsburgh.

"The calculus for deciding what information to reveal typically is that there is no other feasible way to obtain other necessary information except for such a disclosure," he said. When revealing that confidential information, an employer might identify it as such, ask that confidentiality be maintained by the employee receiving the information and emphasize its policy of nonretaliation. The employer might remind the employee that there could be discipline for retaliating against any individual based upon such confidential information provided by the employer.

"As few people as possible should know," Moore said. "Likely certain executives and managers need to know. Perhaps the board or a select number of people on the board need to know. It depends on the circumstances."

Interview nonemployees—such as former employees, customers, clients or other third parties—only when essential, Moore added. "Nonemployees face little to no repercussions for failing to comply with confidentiality admonitions, since they are not part of the organization," she said.

Handling Interviews

Many investigations come to light when employees see a parade of witnesses going into a conference room or the HR office, Bidgood said. Meeting in a more private place can help employees speak more freely.

Consider the ways that witnesses are contacted for an interview as well, Johnson recommended.

For example, an investigator appearing and summoning someone from the shop floor to accompany the investigator for an interview will almost certainly generate interest and create a situation where the witness or someone else may reveal something about the matter or at least feel pressure to do so.

In contrast, Johnson said, quietly contacting a witness and scheduling time in a private office for an interview "is more effective at ensuring that the entire matter stays confidential, avoids possible pressure on the witness from third parties, and limits the opportunity for the investigation or the witness's participation becoming fodder for the rumor mill."

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