24 Sep Internal Investigation Confidentiality Agreement
As previously noted (see here, here, and here), the SEC has implemented several enforcement actions to enforce Rule 21F-17, although no such enforcement action has been taken in the workplace since January 2017. Notwithstanding the board`s assertion that strict confidentiality may be required during investigations, employers should ensure that their internal minutes contain language that clearly indicates that such a rule is not absolute and that employees are always permitted to report their concerns to the SEC. As an investigator, the challenge is to convince the reluctant witness to disclose information without promises of confidentiality. Achieving this goal is easier if you understand the reason for the person`s concern about privacy. Employers should immediately review their manuals and other employment policies with respect to workplace surveys. The NLRB clarified that the employer`s confidentiality guidelines during the investigation are likely only legal during an open investigation. In addition, employer directives may only require the confidentiality of survey participants and must not prohibit employees from discussing the incidents on which the investigation is based. For many good reasons, most employers call on employees to keep the fact and content of the survey confidential. . . .