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Managing confidentiality at the end of a workplace investigation
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?
Employers have reason to be concerned about confidentiality requirements in the context of workplace investigations – both upholding and breaking confidentiality can be a legal and public relations nightmare.
A recent decision from the U.S. National Labour Relations Board (“NLRB”) provides some guidance on confidentiality requirements for workplace investigations within the American context. In Apogee Retail LLC d/b/a Unique Thrift Store, the NLRB found that confidentiality requirements imposed on employees during an investigation were presumptively justifiable. However, any confidentiality requirements pertaining to an investigation after it concluded had to be justified by weighing the interests in maintaining confidentiality against employees’ rights under Section 7 of the National Labor Relations Act, which protects their right to engage in “concerted activities for the purpose of…mutual aid or protection.”
The principled approach to confidentiality outlined in the Apogee decision reflects the more general confidentiality requirements in the Code of Practice, which explains the workplace harassment investigation-related provisions in the Ontario Occupational Health and Safety Act. The Code of Practice states that information about workplace harassment complaints shall be kept confidential unless disclosure is “necessary to protect workers…to take corrective action or otherwise as required by law.” But neither the Apogee decision nor the Code of Practice precisely explains how to assess whether workers need protection. Moreover, neither explains how employers should respond to a participant in an investigation who wants to tell their story after an investigation is over, regardless of whether the impetus to tell their story is to protect their colleagues.
Prohibiting complainants from talking about their experience of sexual harassment at the end of an investigation with a strict, bare-bones confidentiality requirement might be interpreted as the employer muzzling the complainant to protect its reputation, or even the reputation of the alleged harasser. This occurred in 2016, when a former Brock University student raised a complaint of sexual harassment against her professor. Once the student received the results of the investigation, which found that her professor had violated Brock’s sexual violence policy, she was told to “keep quiet” about the investigation’s results. Even though there may have been a legal basis for the protection of the professor’s privacy in this case, Brock was lambasted in the media for what appeared to be an attempt to silence the complainant.
At the same time, employers and colleagues of those who are involved in an investigation may be tempted to make statements about an investigation if it receives media attention. In 2016, the University of British Columbia (“UBC”) terminated author and creative writing professor Steven Galloway after an investigation found that he had an inappropriate affair with a student. Aside from this incident, none of the other allegations that were investigated, including an allegation of sexual assault, were substantiated. UBC, supporters of the complainants, and Mr. Galloway all publicly commented on the investigation after it concluded. Everyone except Mr. Galloway faced legal consequences for these comments.
In an article in the National Post, Mr. Galloway made the following statement:
Though I have no wish to quarrel with anyone, I will no longer be silent. I won’t accept further shame or bullying, or the lies that have been told about me. I was investigated and I was exonerated.
UBC was tempted to respond to Mr. Galloway’s claim that he was fully exonerated. Its then Vice-President of External Relations, Philip Steenkamp, responded to Mr. Galloway’s statement in an article that was also published in the National Post:
In an interview, Steenkamp said he was confident UBC followed the proper process and made the correct decision when it fired Galloway. The allegations of sexual misconduct were not the only issues the university examined during its review of his employment.
Steenkamp could not say what other issues were considered.
“It was everything taken together,” he said.
Mr. Galloway’s statement did not violate the confidentiality terms outlined in the arbitration award that arose from this investigation because the terms did not prohibit public statements about the investigation. However, these terms did prohibit making public statements about the reasons for Mr. Galloway’s termination, which is exactly what UBC did. UBC was then ordered to pay Mr. Galloway $60,000 in damages for violating the confidentiality terms of the arbitration award.
Although there was no explicit confidentiality requirement imposed on the complainants’ supporters, one of them tweeted the following comment in relation a news story about Mr. Galloway after the investigation: “That piece said Galloway had an ‘affair’, which we now know is what he calls raping.” Mr. Galloway is now suing her, as well as others who publicly commented on the subject matter of the investigation, for defamation.
What can we learn from these tumultuous cases? How can employers address this desire to tell one’s story after a workplace investigation is completed, while maintaining their legal obligations to protect confidentiality?
Consider taking the following approach:
1. Review your legal obligations
Employers and participants in an investigation may be required to protect the confidentiality of the parties and the subject matter of the investigation under applicable labour and privacy legislation. There may also be requirements to protect the confidentiality of parties stipulated in an employer’s collective agreement, a related settlement or an arbitration award. Employers should be aware of how disclosing information about an investigation may render them liable for a grievance or civil claims of constructive dismissal or defamation. Conversely, there may also be a legal obligation to disclose certain aspects of the investigation beyond the parties involved to protect other employees. These obligations for both confidentiality and disclosure should be reviewed at the end of every investigation, as they may vary depending on the circumstances of each case.
2. Identify disclosure risks
Employers should consider whether participants in an investigation, or their supporters, are likely to disclose details of that investigation after it has concluded. While internal policies may prohibit such disclosures while employed, participants might disclose details of the investigation after they have left the workplace. Employers should also prepare a legally sound communications strategy if there is a risk of such a disclosure.
3. Have a conversation about confidentiality
When informing participants of the results of the investigation, be sure to outline the confidentiality requirement for the investigation and its subject matter, as well as the rationale for such a requirement – it may not be obvious. Remind participants of what might happen if they or their supporters do not follow the confidentiality requirement, including violations of internal policies or law. Finally, inform the participant that they should speak to human resources or obtain independent legal advice before violating a confidentiality obligation at the end of an investigation.
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