Thursday, September 3, 2015

Keeping Confidences

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
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