Thursday, March 16, 2017

Who Needs to Know?

Personnel issues generate great stories.  The work that HR professionals, in-house counsel, and employment lawyers do is full of human drama and often very interesting.  It’s natural for people to want to know what’s behind personnel actions, and it’s natural for those who are in the know to be tempted to tell.  In organizations that value transparency and promote information-sharing, keeping confidences can almost seem like anti-social behavior. Nevertheless, there are compelling reasons to keep personnel matters confidential.

Sometimes, of course, sharing personnel information is not a choice.  A court or governmental entity may demand that information be produced.   An internal investigation may require that personal and performance information be revealed to and considered by individuals who do not routinely have access to it.  Employees themselves may have a statutory right to review Information in personnel records.  In those situations, information sharing is compelled, and the limits and mechanics of providing such information are usually well established.  In many other situations, however, it is left to the discretion and good judgment of managers, HR professionals, and in-house counsel to determine whether those seeking personnel information have a legitimate need to know, and if so, how information will be provided.

Consider, for example, the employer that enters into a separation agreement with a former employee.  The agreement provides that both the departing employee and the employer will keep the terms of the agreement and the facts and circumstances leading to the separation confidential, but with exceptions.  The employee is allowed to share information with legal counsel, immediate family, tax advisors, and medical providers.  The employer is allowed to share information with individuals within the organization “with a legitimate business reason to know.”  The task of deciding who has a legitimate need to know the details of the separation falls to managers, HR professionals, and in-house counsel.  Whether specified in a legal agreement, stated in an employer’s policy, or dictated by law or best practice, a “needs to know” standard can be difficult to implement.  Here are some tips to keep in mind:
  • Wanting to know and needing to know are different.  As noted above, the stories behind personnel actions can be fascinating, and sometimes a request for information is driven by simple curiosity.  It’s always appropriate to ask the reason for the information request.
  • Being a supervisor or manager isn’t always enough.  Supervisors and managers need information that directly affects their ability to carry out their responsibilities.  They may not need to know health and medical information, information about family circumstances, or the details of why someone was fired.  If the supervisor or manager can be effective in his or her job without the information being requested, it’s best to err on the side of confidentiality.
  • There may be alternatives to sharing sensitive information. Sometimes, personnel information can be kept confidential with a little extra effort.  Perhaps a report needs to be redacted or rewritten, or perhaps HR can take on extra responsibility for processing sensitive information so that it won’t need to be shared.  There may be alternative methods of accomplishing tasks without revealing personnel information unnecessarily.  Alternatives that protect sensitive personnel information are usually worth the effort and always worth considering.
  • There may be a binding agreement or legal authority to consider.  Sometimes, as in the example above, an employer has entered into a legally enforceable agreement to keep certain information confidential.  Some personnel information is protected by law.  Employment agreements may include provisions related to the handling of an employee’s personnel records and information.  Before deciding whether or not to share information, it’s essential to find out what, if any legal constraints exist.
  • Training and reminders are worthwhile. Those who have access to personnel information, or who decide who will have access to it, should be carefully trained and regularly updated on relevant law and policy.  Those who gain access in specific situations, however, will not have the benefit of that training and may not understand the need to keep the information confidential.  They should be advised - clearly and forcefully - of the need to protect the information and the consequences of failing to do so.

    Posted by Judy Langevin