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Set a clear policy on confidential talks with employees

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in Employment Law,HR Management,Human Resources,Leaders & Managers,Management Training

Issue: Should you guarantee employees confidentiality when they voice complaints to you or to supervisors?

Risk: Blanket promises of confidentiality could blow up in your face; some laws require you to report illegal or unethical conduct.

Action: Create and promote a well-crafted policy that warns employees that certain topics are exempt from confidentiality.

"If I tell you something, will you promise not to tell anyone else?"

You, or maybe some supervisors at your organization, may have dealt with employees who wanted to voice a complaint or use someone as a sounding board ... but they also wanted to keep that discussion "off the record."

Should you? Your best bet is to tell employees that you'll keep the information as confidential as possible, but also alert them that you must report certain types of illegal or unethical conduct.

Example: When HR consultant Lynn Nemser worked in corporate HR, a female employee asked if she could remain anonymous but still spill the beans about an exec who was telling crude jokes. Nemser's response: "Before you tell me, keep in mind there are some things I am legally required to report."

The employee ended up naming names. Nemser talked to both parties separately and resolved the complaint with an apology from the exec, who agreed to change his behavior.

Bottom line: If you promise to keep a complaint confidential, you could hurt the organization's legal position.

"If you are sued, your case is weaker because you've sat on the information and done nothing about it," says Nemser, president of Pittsburgh-based Partners in Performance.

Keeping information confidential could also violate in-house policies that require managers and supervisors to disclose possible breaches of company rules to HR or senior execs.

"Requests for these kinds of discussions are exceptionally common," says employment lawyer and former HR executive Michael Mirarchi, president of Mirarchi & Assoc. in Texas. "The only defense is a policy that anticipates them" and sets ground rules.

Make sure that your policy clearly says that management is required to report information about any kind of harassment, discrimination, threats of violence, violations of the Sarbanes-Oxley Act, drug use violations and unethical or illegal conflicts of interest.

The policy should also state that information will be kept as confidential as possible.

Include the policy in employee manuals and remind workers about it during periodic meetings or training.

The policy should distinguish between areas that are exempt from confidentiality and personal/family problems, such as alcoholism and depression, that require EAP assistance.

The benefits: A well-communicated policy accomplishes several key goals:

  • It encourages employees to bring problems to management when they're ready to share and solve them.
  • It prevents empathetic supervisors from being tempted to promise confidentiality to employees that they can't and shouldn't provide. 
  • It averts awkward scenarios in which employees drop a bombshell on a supervisor and then ask that he or she keep it top secret.

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