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How to Avoid Invading Employee Privacy During Investigations

Conducting an investigation may involve some poking around, but if you cross the line from legitimate workplace concerns into private matters, you could be inviting a lawsuit.

Posted by Joe Gerard on May 5th, 2011

Investigators deal with a lot of personal employee information during internal investigations. This poses one very obvious investigation risk: invading employee privacy.

As an investigator, you need to know what activities are acceptable and which ones cross the line, in order to conduct a fair and legal investigation. This can become incredibly difficult for investigators, especially when they are investigating sensitive allegations, such as harassment or discrimination.


Investigators walk a fine line when deciding whether to share investigation information with interview subjects.

When conducting investigative interviews, a subject might make requests that require the investigator to choose between privacy and information accessibility. Are these requests acceptable? It depends. Learn more in this free webinar.

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Why Does Privacy Matter in an Investigation?


Easy answer: lawsuits. If you cross the line in an investigation, you risk having the employee file a lawsuit against your company.

In the book “The Essential Guide to Workplace Investigations,” by Lisa Guerin, she discusses what can happen if you invade employee privacy during an investigation:

“Don’t become so zealous in your search for the truth that you invade employees’ privacy rights. This can be a tough call, after all, conducting an investigation involves a certain amount of poking around, usually into things that someone doesn’t want you to know about. However, if you cross the line from legitimate workplace concerns into private employee property or behaviour, you could be inviting a lawsuit for invasion of privacy.

If an employee files a lawsuit for invasion of privacy, a judge will look at why both sides acted as they did: why the employee expected privacy and why the employer searched, monitored or otherwise got into an area the employee felt was private.”


How to Avoid Invading Employee Privacy


Here are some tips to help you avoid crossing the line and invading employee privacy during an internal investigation:


Gather and share information on a need-to-know basis.


This should be an investigator’s number-one policy when collecting and sharing investigation-related information. If certain information isn’t needed for the investigation, don’t look for it. When investigation information needs to be sent to another investigator, manager or third party, only give them access to the information that pertains to their role in the investigation.

This rule can be applied to employee information in general; only collect the information you absolutely need. Anything else isn’t necessary.


Build Privacy Into Your Workplace Policies


As an employer, you are able to monitor an employees work email and their Internet use on work computers. Should you choose to monitor these activities, make a clear statement about it in a written policy. In doing so, you are informing your employees that the company will probably be checking in and this particular information can be searched if an investigation is warranted.

Another thing you’ll want to include in the policies is a list of what employee information you collect, why you collect it and what’s done with it.

When employees are aware of what will be searched in an investigation, they aren’t likely to fire back with privacy invasion allegations, because they were warned and expected those areas to be searched anyway.


Stick to the Facts


Don’t stray from the actual allegation – that is, unless another form of misconduct or an additional incident gets brought to light during an investigation. When you’re collecting evidence, conducting investigation interviews and any other form of investigation-related communication, seek out information that helps you answer the question “what actually happened?”


RELATED: Cameras in the Workplace: Where’s the Fine Line?

Joe Gerard
Joe Gerard

CEO, i-Sight

Spend my days showing off the i-Sight investigative case management software and finding ways to help clients improve their investigations. Usually working with corporate security, HR & employee relations, compliance and legal teams.

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