Tom Johnson Discusses Confidentiality in Workplace Investigations With SHRM

In “Employers Can’t Guarantee Complete Confidentiality in Investigations,” labor and employment partner Thomas Johnson II spoke to the Society for Human Resource Management (SHRM) about protecting confidentiality in workplace investigations.

Johnson stated that if a disclosure is necessary, employers should consider the minimum information that needs to be revealed. For instance, 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 emails 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, timecards 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.

Johnson also recommended considering the ways that witnesses are contacted for an interview as well. 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 explained that 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.”

The full article is available for SHRM subscribers.