Before they begin any internal investigation, employers and their counsel must consider how information uncovered during the investigation is to be preserved in confidence. Of course, some of the information collected during the investigation may already be eligible for protection under some form of confidentiality or nondisclosure agreement. The confidentiality of internal investigation materials may also be eligible for protection under the attorney-client, work-product or self-evaluation privileges, provided that such privileges are not waived during or after the investigation by inadvertent or intentional disclosure of the information.
In order to maximize the chances that the results of any investigation, or legal review for that matter, will be eligible for protection from unwanted disclosure, employers should take the following steps:
• Generate a record that supports an expectation of privacy and intent to prevent and cure violations of law.
• Obtain formal authorization of the investigation from management that makes it clear that the purpose of the investigation is to render sound legal advice to the company.
• Ensure that qualified counsel is selected to coordinate and control the investigation, including, without limitation, ensuring that all investigation participants are instructed to report directly to counsel.
• Formally direct employees to cooperate in the investigation and make sure employees are aware that counsel represents the corporation.
• Educate managers in the laws and practices relating to protection of internal communications, including the operation of the legal system and the role of counsel.
When making plans relating to creating and preserving desired privileges employers must be mindful that National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) have objected to overly broad confidentiality requirements that companies have attempted to impose on employees in the context of internal investigations of workplace issues. For example, the NLRB has taken the position that a non-management employee has the right to speak with co-workers about workplace concerns under Section 7 of the National Labor Relations Act and that this right is not outweighed by generalized concerns of his or her employer regarding the integrity of an investigation, and the EEOC is on record that imposing overly broad confidentiality requirements violate federal anti-discrimination laws. Both regulatory agencies have indicated, however, that employers may request confidentiality from their employees on a case-by-case basis when the employer has made an individualized assessment that reveals case-specific risks that present a legitimate and substantial business justification for a confidentiality instruction. Accordingly, employers must abandon traditional practices of telling employees “to keep the investigation confidential”, and including such language in all policies and other forms relating to investigations, in favor of making sure that the above-referenced case-by-case assessment is made and making sure that if a confidentiality request is made it is accompanied by a clear statement from the employer that it believes such a requirement is reasonable under the circumstances.