Are Workplace Investigation Reports Confidential?
Investigations and confidentiality have a changing relationship. Do you know where workplace investigation reports fall on the public-private spectrum?
A few years ago, the National Labor Relations Board (NLRB) made a ruling that changed how investigators sought out confidentiality for internal investigations. Since the ruling, an investigator needs to make a case proving why an investigation should be confidential, instead of the former blanket approach where confidentiality was presumed. But, how are workplace investigation reports affected by this?
For more quick facts about the NLRB's changes, check out this Confidentiality Ruling cheat sheet.
What About Workplace Investigation Reports?
One question that remains is how to deal with workplace investigation reports and their levels of confidentiality. Each company will have different expectations for the privacy and security of their employees, so the best first step is to agree on terms of references. Limiting the disclosure of information is extremely important as there’s a lot of risk if a workplace investigation report winds up in the wrong hands.
Before you begin distributing the report, determine if you'd benefit from having a member of the legal team look it over. Hint: the answer is usually yes. Their knowledge of law puts them in a good position to offer suggestions and identify potential law-related issues within the report. On top of being able to offer legal expertise, this reader also simply serves as an extra set of eyes. They’re likely reading the report in full for the first time which puts them in a position to see things you may have overlooked.
The "Need to Know" Approach
Whether you're an internal or third-party investigator, the wellbeing of those involved in the investigation is a priority. Not being cautious while distributing a workplace investigation report (which is likely filled with sensitive information) is a recipe for disaster. That's why the "need to know" approach is the business standard for internal investigation reports and the typical course of action for confidentiality. Determine who needs to know, how much they need to know, then go ahead and make sure they know.
This approach is used not only to protect employees from backlash, but also to protect the company against retaliation claims. According to NOLO, a leading website in the legal world, “any negative action that would deter a reasonable employee in the same situation from making a complaint qualifies as retaliation”.
In the Avoiding Whistleblower Retaliation Claims webinar, Lorene Schaefer discusses how to foster a culture where retaliation risks are mitigated.
For example, imagine an employee made allegations and an investigation was conducted. The final report was read by a manager who was not involved. A couple of weeks later that employee loses out on a promotion and believes they were purposefully overlooked because of the allegations they made. As you can imagine, retaliation claims can negatively affect a company’s morale and reputation, and can be expensive if the allegations are proven to be true.
The key is to strike a balance between the rules for confidentiality and the desire for transparency. One final piece of advice: these types of documents can have multiple versions by the time it’s final. So, triple check that the copy you’re sending is the most recent and don't forget to take advantage of the confidential watermark feature. After all this hard work, the last thing you need is to distribute a draft.