Privacy Advisor

Ask the Privacy Expert

September 1, 2007

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Phil Gordon

Q: Internal investigations have become an integral part of managing an organization as employers confront an increasingly wide range of employee misconduct. Because investigators often surreptitiously collect information which the target considers private and the results of which can ruin a career, internal investigations can expose an employer to civil, and even criminal, liability as well as bad publicity. What are some of the steps which can be taken to reduce an organization's exposure?

A: Involve both Human Resources and Privacy Professionals in Internal Investigations. In many organizations, workplace privacy issues fall into a chasm between the HR Department, focused on employee relations but not privacy, and the privacy professionals, focused on consumer data protection. While HR professionals have become increasingly sensitized to privacy issues, they may not have the in-depth knowledge and "gut instincts" about privacy of a privacy professional. Having the input of both of these branches of the organizational chart will help to reduce risk.

Determine How Your Organization Will Lawfully Examine the Target's Email Without the Target's Express Consent. Unconsented review of email is a staple of internal investigations. Email stored on the organization's own servers generally is fair game provided that the organization has implemented and enforced a carefully drafted electronic resources policy which puts employees on notice that their stored email is subject to review in the organization's sole discretion. Members of the investigative team should be ready to raise red flags, and involve knowledgeable legal counsel, in more complex situations which inevitably will arise. For example, can the organization review email stored in an employee's company-provided, Web-based email account? What about work-related email stored on an employee's personal Blackberry? When is real-time interception of email permissible?

Vet and Control Your Private Investigators. Hiring, and contracting with, private investigators should be subject to the same due diligence and care applied to vendors entrusted with sensitive consumer information. Hire only those private investigators whom you are convinced will abide by the law's limits. Memorialize the relationship in a written agreement in which the private investigator, at a minimum, represents and warrants that it will use only lawful investigative techniques and will indemnify the organization for any damages resulting from a failure to do so. Require that the investigator describe and obtain approval for all investigative techniques to be used. Keep in mind that under agency law principles, your organization can not avoid liability by turning a blind eye to the investigator's actions.

Comply With the Fair Credit Reporting Act.
If your organization relies upon a private investigator to conduct an internal investigation of suspected misconduct related to employment, your organization must comply with the Fair Credit Reporting Act (FCRA) before taking adverse action based, in whole or in part, on the investigator's report. Under the FCRA, the report can be disclosed only to the employer and its agents, government agencies, pertinent self-regulatory bodies and as required by law. In addition, the employer must provide the subject of the report with a summary of the nature and substance of the report. The sources of information in the report, however, need not be disclosed.

Philip Gordon is a shareholder in Littler Mendelson's Denver office and chairs the firm's Privacy and Data Protection Practice Group. He also authors the blog, "Workplace Privacy Counsel" (www.workplaceprivacycounsel.com). He can be reach at pgordon@littler.com This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or +303.362.2858.

This response represents the personal opinion of our expert (and not that of his/her employer), and cannot be considered to be legal advice. If you need legal advice on the issues raised by this question, we recommend that you seek legal guidance from an attorney familiar with these laws.