LEGAL
Before your company begins any internal investigation, you 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, you should be sure that the following steps are taken by everyone involved in the investigation:
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.
More information about conducting internal investigations is available in Business Transactions Solutions (Ch. 93), including a code of conduct statement regarding reporting and internal investigations (see Specialty Form at § 93:55) and an internal investigation checklist (see Specialty Form at § 93:56).
Alan S. Gutterman is the founder and principal of Gutterman Law & Business, a leading provider of timely and practical legal and business information for attorneys, other professionals and executives in the form of books, online content, newsletters, programs, training and consulting services. Mr. Gutterman has three decades of experience as a partner and senior counsel with internationally recognized law firms counseling small and large business enterprises in the areas of general corporate and securities matters, venture capital, mergers and acquisitions, international law and transactions, strategic business alliances, technology transfers and intellectual property, and has also held senior management positions with several technology-based businesses including service as the chief legal officer of a leading international distributor of IT products headquartered in Silicon Valley and as the chief operating officer of an emerging broadband media company. His publications are available on the Legal Solutions website or at Westlaw at Business Counselor. Mr. Gutterman can be reached at agutterman@alangutterman.com.
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