Workplace investigators all do the same thing when they conduct an investigation: they tell participants to keep the investigation and its subject-matter confidential. This instruction helps protect participants’ privacy and maintain the integrity of their evidence. But what happens to this confidentiality requirement when the investigation is over? How does an employer respond when a participant in an investigation says that they want to tell their story, in their own words, to an audience beyond the painstakingly neutral and objective investigator?
In our digital era, investigators must be increasingly technologically savvy. Evidence can take on many forms, including texts, emails and social media accounts. Many employers provide company-issued phones, which, more often than not, happen to be iPhones that are controlled by Apple IDs and rely on virtual storage. As the workplace is further digitized, and as more offices become mobile or virtual, investigations will naturally be dealing with evidence that is stored virtually on a cloud. As the decision District of Houston v. Canadian Union of Public Employees, Local 2086 (“District of Houston”) illustrates, sometimes when evidence is stored virtually, it is not so easy to access.
Sometimes, when I tell people that I conduct workplace investigations for a living, I am met with surprise. “There is a need for that?” they ask, often adding their view that harassment is a thing of the past. When I explain that it is not only harassment that is a problem in Canadian workplaces, but also violence, I am often met with complete disbelief.
Recently, in the town of Lorette, Manitoba (Pop. 3,208), which is 25 kilometres southeast of Winnipeg, a little inside joke made a very big public splash. The medium? Cake icing. The platform? Snapchat. At a time when employees constantly scroll through their IPhone notifications, mean jokes blasted over social media easily infiltrate the workplace.