Checklist: Guidelines for Protecting Employee Privacy Rights During an Investigation

Treating all employees who are being dismissed with dignity and fairness is a crucial strategy in avoiding lawsuits. Even if the circumstances that led to the dismissal may have been terrible, at no time in the entire process should management fail to be fair, become emotional or not make every attempt to preserve the employee's dignity and reputation. Why? Because it sends a powerfully positive message to coworkers and minimizes possible lawsuits arising out of the termination, including defamation charges.

Following these guidelines will help protect employees' privacy rights during the investigatory, disciplinary and termination processes.

• Be extra diligent. Carefully investigate the reasons why an employee is being terminated. Be sure that there is a legal basis to act and that the information supporting the decision to terminate was not gathered at the expense of the employee's privacy rights.

• Maintain only business-related information. Do not collect, use or retain information in the workplace that does not have a clear business purpose. That purpose must, moreover, be easily articulated and understood by a third party. Carefully check any information collected for accuracy.

• Keep communications confidential. Limit all discussions relating to the termination itself to employees who have a need to know. Be wary of conversations being overheard, especially in elevators, restrooms, or at lunch. Do not discuss the situation with outside parties and friends.

• Avoid unnecessary document disclosure. Use the same care in transmitting records as you do in your conversations. Consider transmitting written information in sealed envelopes. Establish procedures authorizing who can open sealed envelopes or reseal contents and documenting who has had access. Know the security limitations of e-mail and other electronic media, and take appropriate precautions.

• Develop record-keeping procedures. Prohibit maintaining unofficial files, such as files maintained by supervisors, that contain sensitive information other than wage and salary data. Periodically reaffirm this policy. Institute "collection" mechanisms for records when employees leave the company.

• Exercise caution concerning references. Routinely reevaluate the procedures used to respond to requests for employment references on former employees. Consider reviewing what will be released with the departing employee. Require written requests for information from third parties and written authorization from the employee to release job reference information.

• Develop a policy. Establish a privacy policy or incorporate a privacy statement into the organization's employee handbook. Advise employees in writing of all monitoring devices, with particular emphasis on electronic databases and telephone surveillance to rebut any unfounded expectations of workplace privacy.

• Communicate information when possible. Establish and maintain an "open" attitude within the workplace for employee access to information that concerns them. When access is denied, make sure the reason makes sense to the employee and provide for the employee to appeal the denial. An open attitude will affect how employees feel when terminated.