Confidentiality is a tricky thing in workplace investigations. Employers have to balance several somewhat conflicting considerations when addressing investigation confidentiality.

3 Considerations

First, most of us who are involved in workplace investigations feel that we can best do our jobs where the people who have relevant knowledge of the subject of the investigation do not talk to anybody except us. We want to control the flow of information as much as possible, and experience tells us that is beneficial in getting to the bottom of the complaint.

Second, though, absolute confidentiality presents challenges, for at least two reasons. Years ago, HR professionals, employment lawyers and even the EEOC recognized that it is not advisable to promise complete confidentiality to a complainant, because it is often not possible to fully investigate concerns without disclosing some aspects of the complaint, including the identity of the accuser.

More recently, the National Labor Relations Board has taken the position that a blanket policy of requiring confidentiality of employees involved in investigations could violate employees’ rights to communicate about the terms and conditions of their employment under the National Labor Relations Act. Rather, employers need to make a particularized determination that confidentiality is necessary under the circumstances of the immediate investigation.

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While this position has yet to be tested in the courts (and the NLRB’s recent aggressive positions have failed some tests in the courts recently), employers should proceed carefully at least before taking serious disciplinary action against employees who violate policies or agreements to maintain confidentiality in an investigation.

Third, employers must face the reality that people talk. I always remember what one colleague told me in another context – everybody tells one person. Everybody. Think about it.

 Gossipy Grant

The focus of this post is the witness who tells more than one person. We will call this gossipy employee Grant. You interviewed Grant because, when his co-worker Carly complained that their boss Bob was making highly inappropriate comments of a sexual nature to Carly, she identified Grant as the only individual who had witnessed these comments firsthand. Like many employees, Grant is getting caught up in the workplace drama, particularly his central role in it. He is well intentioned and does not have any particular agenda, in fact he is taking this all very seriously and wants to help the company reach the best resolution.

So, despite having agreed with you that he would keep matters confidential, Grant begins talking to other employees about the situation. This first comes to your attention when one of those employees comes to you, because it strikes him as odd that he is approached by Grant on this topic, and is wondering if there will be some more official conversation on the topic, such as with HR. While you are calmly thanking the employee for the inquiry and saying you will get back to him, your blood is heating up at Grant.

You talk to Grant and tell him that it will be most productive if he lets you, the person actually trained and employed to conduct this investigation, handle the investigation and you would appreciate it if he maintains confidentiality as you had discussed. This does help matters, but Grant still does have some conversations with other employees. Well intentioned or not, at this point it is insubordination, and it is getting in the way of the company completing its investigation.

Discipline Employees Carefully

There are many reasons to be careful about taking serious disciplinary action against Grant:

• It may disrupt your primary mission of determining what Bob really said to Carly, and take away your only third party witness.
• As noted above, the NLRB may take the position that disciplinary action is improper. While I believe that best practice is still to ask employees for confidentiality (just take some more careful steps in articulating that than perhaps we did in the past), and that courts are unlikely to hamstring employers in dealing with an extreme obstructionists like Grant, employers do need to consider this risk in taking action against such employees.
• While again Grant is an extreme example, he does have a ready-made retaliation claim. He is involved in an investigation of alleged conduct prohibited by Title VII, and the law prohibits the employer from taking action against him for his involvement in that investigation. Of course this is not the reason you would take action against Grant, but the basic facts are there such that you need to manage this potential risk as well.

My sense is that in a situation this extreme, Grant warrants a stern written warning that is carefully crafted to minimize the risks set forth above. Indeed, Grant is arguably inhibiting your ability to satisfy the employer’s obligations to investigate under Title VII, and the employer needs to document that. There are certainly enough hazards that you should consult with legal counsel (if he/she is not already involved) before issuing such a memo.

Investigation Confidentiality

Grant is an extreme example, and it is unusual to encounter an investigation confidentiality problem to that degree, but I think most employers will recognize the eager employee who watches too many cop shows on TV and gets caught up in being the center of attention. The situation more than anything highlights two preventive best practices:

1. Set forth in advance the expectation of confidentiality. I have written on this here before and how that might be accomplished. Talk to your legal counsel about the specifics that make sense for you in light of the legal issues touched on in this post, but in most cases I think best practices still call for establishing this expectation up front.
2. Move quickly. As I said at the outset, your ability to manage information flow is limited perhaps more than anything by human nature. The faster you can complete your investigation, the fewer of these problems you will encounter. In addition, this will enable you to respond to the actual complaint as soon as possible – also an important an risk management step.

As is almost always the case in these scenarios, proactive steps and the presence of an experienced investigator who has encountered and addressed most situations that can arise in the long run can save the company thousands of dollars and untold distractions resulting from legal claims.