Employers conducting investigations into employee complaints take note: the results of your investigation may not be private, even if the investigation is conducted by an attorney.
In a recent decision that made the front page of the Massachusetts Lawyers Weekly, Burke v. The General Hospital Corp. et al., a Superior Court judge ordered Massachusetts General Hospital (“MGH”) to provide a terminated employee with an outside attorney’s investigative report. While employed at MGH in 2011, the employee reported that the hospital was double-booking surgeries, requiring surgeons to perform multiple surgeries contemporaneously. The employee alleged that the practice was jeopardizing patient safety. MGH engaged Donald Stern, former U.S. Attorney for Massachusetts, to investigate the allegations and to make recommendations regarding the hospital’s policies and procedures. Several years later, the employee was terminated. He is now suing MGH, claiming that he was unlawfully terminated in retaliation for his earlier report. In connection with the litigation, he sought disclosure of the investigative report prepared by Attorney Stern.
As may have been the case at MGH, employers often assume that by using an attorney to investigate reportedly unlawful conduct (such as discrimination, harassment, retaliation, or wrongful corporate conduct), the employer may withhold the results of the investigation on the grounds of attorney-client privilege or the attorney work product doctrine. In Burke, however, the Court rejected MGH’s argument that the report was protected by the attorney-client privilege (or work product doctrine). Rather, the Court found that the investigator, although an attorney, was not engaged to (and did not) offer legal advice or representation to MGH. In any event, MGH’s decision to share the report with a public relations firm outside the hospital resulted in a waiver of any privilege that otherwise may have attached to the report.
Burke offers some lessons for employers who find themselves having to investigate potentially unlawful conduct. Because in many circumstances employers have an affirmative duty to investigate potential misconduct, we offer the following guidance for understanding the limitations of the attorney-client privilege and work product doctrine when managing a workplace investigation:
Limitations of the attorney-client privilege and work product doctrine:
- While communications with counsel for the purpose of seeking legal advice are privileged, not all factual information exchanged with counsel will be privileged.
- Employers may not selectively invoke the attorney-client privilege. Disclosing attorney-client communications to third parties, such as a public relations firm, an auditor, or a governmental organization like the MCAD or EEOC, will generally result in a waiver of the privilege. In a similar vein, one cannot disclose to third parties some communications with counsel regarding an investigation and then withhold other communications about the same investigation.
- One may not use the attorney-client privilege as both a sword and a shield. Because MGH publicly cited to the report to defend itself against the employee’s claims, it could not refuse to share the report when challenged about those claims.
- Documents prepared by attorneys in connection with an investigation are not immune from disclosure in every circumstance. The work product doctrine protects against the disclosure of information prepared in anticipation of litigation or as a result of active litigation except where the opposing party can demonstrate a substantial need for the information. To take advantage of the attorney work product doctrine, the threat of litigation must be apparent, such as an employer’s receipt of a demand letter from an aggrieved employee or their counsel. Absent a threat of litigation, however, an investigation intended to assess and resolve a workplace dispute, or to uncover wrongful conduct in the workplace, is not necessarily protected from disclosure.
- Generally, an investigation conducted by a non-attorney, such as a human resources employee, and which is not performed at the direction of an attorney, is not work product.
- As Burke illustrates, employers must separate business advice from legal advice when considering whether an investigation can be kept confidential. An investigator who is engaged to help an employer improve internal procedures and processes, or to uncover facts, will not fall under the scope of the attorney-client privilege simply because they are an attorney.
Suggestions for managing investigations:
- As soon as practicable at the start of an investigation:
- Consult with counsel to determine the nature and scope of the investigation, and to identify applicable policies and procedures.
- Understand what the investigation is intended to accomplish and whether these goals are best achieved by using an attorney and/or independent investigator.
- Determine in advance the questions you would like the investigator to answer. Will the investigator simply find facts or will they also determine whether any policies (and/or laws) were violated?
- Consult with counsel to understand the limits of confidentiality. Depending on the subject matter of the investigation, an employer may not always prohibit employees from discussing the matter that is under investigation.
- Consider whether your investigator’s findings and conclusions should be memorialized in a written report.
- Decide whether to share findings from an investigatory report (or an executive summary thereof) with the person bringing the complaint, the person responding to the complaint, and/or these individuals’ supervisors.
- Remember that if litigation is on the horizon, the organization may have an affirmative duty to preserve information relating to the subject of the investigation. This might include all investigatory materials. Take steps to organize such information so that it can be preserved and readily compiled if necessary.
- Employees who make a report, in good faith, of unlawful activity should be protected from retaliation for having voiced their concerns.
For further information, contact Kurker Paget LLC.