One of our very favorite cartoons is part of the “Ballard Street”
collection by Jerry
Van Amerongen. It depicts an earnest soul working away at his desk
(we like to think he’s an HR professional) beneath a prominently-posted sign
that says “BEWARE LOOSE TALK AND SHENANIGANS.” The caption reads “There
are a couple of things Kyle likes to stay focused on.”
Anyone who works in human resources or employment law
understands the “shenanigans” reference all too well. We are amazed every
day by human behavior. See here
and here
for recent examples of workplace or work-related behavior that left us shaking
our heads. Very little seems to surprise those who have spent a few years
in the field. And the stuff we learn about, in our own organizations or
in our clients’ workplaces, makes for awfully good stories. The
temptation to talk about the situations, behavior and people we deal with
professionally can sometimes be overwhelming. We thought it might be time
for a reminder about the importance of keeping confidences and why we, like
Kyle in the cartoon, should beware of loose talk.
Lawyers’ Professional Responsibility. The ethical
rules that govern the practice of law require lawyers to keep client
confidences. There’s no exception for really juicy stories. Whether
in-house or outside counsel, lawyers just don’t get to talk about what they
learn while representing their clients, except in the most limited of
circumstances.
Defamation Claims. Like negative references,
story-telling about a current or former employee can be the basis for defamation
claims. Although truth may be a defense to a defamation claim,
whether or not the really good story you told about the employee you fired is “true”
can be the subject of a long court battle. Anytime you disclose negative
information about an employee, you need to be sure that the disclosure is
necessary, that it’s made only to appropriate people, and that it’s accurate.
Privacy Claims. Careless dissemination of private
information – such as the reasons for a termination – can be the basis of a privacy
claim in some jurisdictions. As with defamation claims, it matters
whether the information being shared is shared for a good business reason and
whether it’s accurate. Given all the ways that individuals share
information these days, it may seem odd that an employer’s actions can create
legal liability, but they can.
Personal Liability. It’s not just lawyers and
business entities that can face consequences for inappropriately sharing
information about employees. Individuals
can too. Assuming the information-sharing happened in the course and
scope of employment, the employer may have to defend
and indemnify a manager, HR professional, or in-house lawyer who is
individually sued, but that protection is not a certainty.
However tempting it may be to tell stories about the
shenanigans we learn about as employment lawyers, in-house counsel, and HR professionals,
it’s just not worth the risk. It’s also not good personnel practice. As
hard as it sometimes may be, we need to learn to keep the confidences that come
to us as a result of our jobs.
Posted by Judy Langevin
