Can you promise an employee that what they tell you about another employee will remain confidential?
Can you ask an employee to keep the information discussed in a workplace investigation interview confidential?
The answer to both questions is maybe, but not completely. Clear as mud? Many things in business and human resources are, but let’s try to make some sense of it.
In Part 1 of this series, When an employee says… I don’t want you to do anything, I just thought you should know, we discussed the reasons why a company may need to conduct an investigation, even though the employee states they do not want anything done. But even when an investigation is required, that does not automatically mean that all of the information shared with you by the employee can or should be shared with anyone else. Any time, and at the time, that an employee says that they want information kept confidential, they should be informed of the following:
- Although I can promise you that I will keep the information you share as confidential as possible, if the information includes potential sexual harassment, discrimination, bullying, safety, or a serious policy violation, I am legally obligated to share the information with those who need to be involved in order to take appropriate action.
- What I can promise you is that I will inform you of who will be told, and what information will be shared, before I pass on the information.
- If an investigation is needed, the employee accused of wrong doing and any potential witnesses will only be told the minimum amount of information needed to conduct a fair and impartial investigation. The statements and investigation files will not be shared with investigation participants.
- And remember, there are whistleblower and retaliation protections in place to protect you and your job. I will follow-up with you periodically to ensure that no retaliation is taking place.
If the information the employee shares with you is simply to obtain advice on how to respond in certain situations to peers or supervisors regarding daily work issues, then the information can generally be kept confidential. However, the employee should be encouraged to talk to you again if the advice does not rectify the situation.
Over the last few years, the National Labor Relations Board (NLRB) has broadened the scope of employee rights to concerted activity to include the right to discuss openly with co-workers the information discussed in a workplace investigation. This action, and a list of lawsuits ruled in their favor, has created liability for employers who have a policy of or ask an employee not to discuss the investigation with other employees. Attorneys have varying opinions on whether you can ask employees to refrain from sharing details only until the investigation has concluded. We advise consulting with your labor attorney before requesting or requiring confidentiality from an employee. And it is a good idea to review your handbook to ensure no confidentiality clauses are included in your investigation policy.
A good article on the NLRB’s latest case against investigation confidentiality, and policies for such, violating employee protections of concerted activity can be found at http://www.hrmorning.com/latest-thing-you-cant-ask-employees-to-do-ruling/.