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Investigations: You can (and should) demand silence from all participants

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in Discrimination and Harassment,Employment Law,Firing,HR Management,Human Resources

Water-cooler talk about alleged discrimination or harassment can poison a workplace.

As in a game of “telephone,” the story often becomes jumbled and exaggerated as it’s passed from employee to employee. Plus, workers who are spending time discussing the latest allegation aren’t doing what they’re paid for—working.

That’s why your company policy should require all participants in investigations (including witnesses) to keep quiet about the issue. Tell employees about this confidentiality policy when you discover you’ll need to meet with them as part of the investigation.

That way, rumors and exaggerated claims won’t influence other employees who haven’t yet told investigators their side of the story.

As this case shows, employers that terminate workers for violating that confidentiality needn’t worry that doing so is retaliation, as long as they have a policy and use it consistently.

Recent case: Grocery store employee Natika Gant complained to HR that the store’s evening manager made racial comments, such as that he couldn’t “stand ghetto black n*****s.”

The store had a strict policy that required investigation discussions to remain confidential. When it learned Gant had talked about her complaint with two others in the store, she was fired for violating the confidentiality rule.

Gant sued, alleging retaliation. But the court said she had no evidence the company had any reason for firing her other than breach of confidentiality. It dismissed her case. (Gant v. Kash’n Karry Food, No. 09-14063, 11th Cir.)

Final note: Before firing employees who have filed legal complaints, review the termination with your employment attorney. Also note that employers may violate the National Labor Relations Act if they try to quash discussions about benefits, pay and conditions of employment. (See related story.)

Should you guarantee silence?

While you can urge employees to remain silent about investigations—and punish them if they don’t—it’s best to avoid a policy that guarantees employees that their harassment investigations will be held in complete confidentiality.

Reason: Some courts interpret policies as enforceable contracts, and you don’t want a few words of co-worker gossip to result in a breach-of-contract claim.

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