Confidentiality Has Its Limits (At Times, That Is)

“We’ve completed the investigation, and the matter has been resolved.”

“Did you verify what I told you? Has he/she been disciplined? Will this stop? What happens next?”

“All I can tell you is that this has been resolved; if you have further issues, please let us know. We are required to keep our findings and actions confidential. I’m sure you understand.”

This sort of conversation happens all the time when organizations find that a workplace offense has been committed and must enforce corrective action, especially when the offender is in a powerful position. I understand the rationale: “We don’t want to violate the rights of the person investigated. We could be sued for defamation or something else. So we’ve got to keep our comments to a minimum. The key is that we’ve acted.”

Of course, there’s a risk in divulging investigative findings – particularly if they support the claim and lead to serious disciplinary measures. A prominent executive, lawyer, physician, or researcher may take action if he/she disagrees with the steps taken, especially if they become known to others. But life is full of competing risks; this “traditional” approach focuses on only one risk while ignoring danger to the complainant, others potentially affected by improper conduct, the institution itself –and even the offender. Offhand, I can’t think of any big-ticket actions spawned as a result of organizations discreetly communicating legitimate findings. However, as I’ve previously written, retaliation claims are rising with damages in the six- to seven-figure range, not to mention adverse organizational publicity and career damage for the offender. Failing to act or appearing to fail to act effectively carries significant risk, as well.

Complaining of misbehavior involving a prominent leader generally takes an act of courage borne of great frustration and fear. Usually a complainant weighs whether it is wiser to ignore the situation or launch a difficult investigative process that may potentially harm his/her current or future employment prospects. A vague, non-committal response following receipt of a complaint and workplace investigation does nothing to give the complainant any assurance that a thorough inquiry has been conducted and that effective corrective action, assuming it is warranted, has been taken. Without such information, many will assume that nothing has been done and that the powerful offender has prevailed. Should offensive behavior continue, the complainant’s choices narrow: do nothing and learn to live with the conduct, quit, or seek outside help, e.g. a lawyer, regulatory agency, or the news media. No good comes to the organization, the complainant, or the offender if any of these options are chosen. The complainant becomes disengaged, the organization may lose a valuable performer, and the institution and offender remain at significant risk of increased liability and reputational harm for failing to remedy improper behavior after having had a chance to do so.

I’d suggest a different approach based on the idea that remedial efforts can’t be as effective as they should be unless the complainant knows the results of the organization’s findings, at least as to his/her claims and the specific corrective actions that have been taken. This knowledge is what I believe is required to give the complainant assurance that proper corrective action has been implemented. And it is this type of information that communicates seriousness of purpose likely to enable organizations to find out about other problems, sooner rather than later.

Now, of course, some may disagree. Each organization must measure its approach against the thoughts and advice of its leaders, compliance representatives, and inside and outside legal counsel. Nevertheless, let me suggest some steps to consider when communicating investigative findings to an incumbent complainant. The goal is to provide sufficient information so that the complainant knows the matter has been addressed but to do so in a way that also limits risk to the person he/she identified and the organization.

  • Before divulging any information to the complainant, obtain written acknowledgement that he/she will keep the matter confidential and not reveal the findings to co-workers or others. After all, the information is only to assure the complainant that an investigation has been conducted and proper action taken. Of course, the complainant may divulge this to his/her counsel, but that is a risk the organization may decide to shoulder. A complainant’s attorney may also be concerned if it appears that no action or insignificant corrective action has occurred.
  • Review the document with counsel before it is presented or discussed with the complainant.
  • Identify brief, specific, factual findings while avoiding any legal conclusions.
  • Encourage the complainant to come forward if there are other instances of misbehavior, and thank him/her for raising the issues.
  • Assure the complainant that retaliation will not be tolerated.
  • Let the offender know the findings and that retaliation of any kind is unacceptable.
  • Periodically check back with the complainant to determine how he/she is being treated.

Is there still risk? Yes. But that is part of business and professional life. What ultimately stops improper behavior is the knowledge that complaints are taken seriously and that appropriate corrective steps will be applied.

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