Defamation
Defamation consists of communicating false information about a person to a third party, either intentionally (with malice) or with reckless disregard for its falsity. A company can be liable to any of its employees about whom false information is released if it makes the information known itself or negligently allows the false information to be released. For that reason, employers must be extremely careful with the information that often results from investigations. This is why it is recommended to keep information relating to investigations in a separate investigations file. Under no circumstances should an employer allow an employee under investigation to be talked about in ways that could generate defamation liability for the company. Managers should be trained to never say or write anything about an employee that cannot be proven with reliable documentation or firsthand testimony from eyewitnesses.
Invasion of Privacy
The common-law tort of invasion of privacy consists of the disclosure of private facts about a person. There are two main elements to invasion of privacy:
1. the information contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person; and
2. the information is of no legitimate concern to the third parties to whom the information was released.
Thus, since investigations often reveal highly intimate or embarrassing facts about people, especially in the case of sexual harassment, the information must be kept completely confidential by the employer and all who are involved in the investigation.
Privacy Issues in Workplace Investigations
There are important privacy interests at stake in the workplace. Employers have fairly wide latitude in this area, but must be aware of important limitations that apply in various situations. In general, employees have the right to keep private facts about themselves and their families confidential, the right to not be accused wrongly, and the right to enjoy some degree of "personal space." Following is a discussion of some of the more significant ways in which these privacy interests come up in investigations.
