Confidentiality is a foundational element of many professions, particularly those covered by legal regulations regarding privileged communication, such as doctors and lawyers.1 Human resources professionals, however, are subject to a somewhat more complex set of demands and expectations regarding confidentiality in the workplace. Since HR representatives are not legally bound by strict privileged communication guidelines, situations may arise in which an HR professional must weigh their responsibilities to employees, management and the law to judge whether to disclose information.
Below, we’ve outlined some general expectations for HR confidentiality, particularly regarding the types of information that typically are maintained in confidence by HR professionals. We also highlight some important considerations that can help determine when, and to whom, to disclose information.
The Dimensions of Employee-HR Confidentiality
Although HR professionals—unlike medical professionals, religious functionaries or attorneys—are not subject to any overarching legally mandated duty of confidentiality, they are required by laws regulating the workplace to ensure and maintain the confidentiality of some types of employee information. Federal and state anti-discrimination laws, for instance, require the collection and retention of various types of employee information by HR representatives. This data, which can pertain to age, sex, religion, race or national origin, must remain confidential.2 Similarly, social security numbers, birth dates, home addresses and spousal information also must remain confidential within employee personnel files.
Employee health information is subject to a separate, complex set of legal requirements. Contrary to popular belief, the Health Insurance Portability and Accountability Act (HIPAA) actually excuses most employers from adhering to its “Privacy Rule,” as employers generally do not fall under one of its three types of “Covered Entities”: health plans, healthcare clearinghouses and healthcare providers.3 However, other health regulations, including the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) mandate that information regarding employees’ pertinent medical or genetic conditions be kept confidential in a medical record separate from the employee’s general personnel file.
Meticulous file keeping is also generally recommended as an HR confidentiality best practice in the case of an ongoing workplace investigation. If an internal investigation escalates to a formal legal dispute, documentation relating to it could be deemed discoverable; keeping it separated into its own investigation file will protect any confidential employee information from being inadvertently revealed during this process.4
HR Confidentiality and Competing Responsibilities
HR confidentiality standards are complicated by the competing responsibilities that HR representatives face in their roles. While HR representatives typically feel some loyalty to the employees who come to them for help and are genuinely interested in working out solutions that are best for all parties involved in a dispute, their primary directive is to protect the interests of the organization.5 This, in turn, may require disclosure of information that employees would prefer to remain confidential. For example, HR representatives may be required to disclose unprotected data to managers or other affected parties in order to limit the company’s exposure to liability.
On the other hand, maintaining HR confidentiality may not always be consistent with employee preferences or interests. The HR representative’s primary responsibility to the organization often demands that they keep information about the company confidential from its employees. Information pertaining to management decisions, impending personnel moves, potential mergers or acquisitions, the company’s financial health, and other similarly sensitive topics are typically only shared by HR practitioners on a need-to-know basis.6
A New Solution for HR Confidentiality
As workplace discrimination and harassment issues are increasingly matters of public concern, some organizations are turning to a hybrid model of investigation and resolution in hopes of protecting their own interests while still working to handle employee complaints seriously and sensitively.
Under this model, internal HR departments work in concert with third-party companies that offer outside counseling to employees involved in workplace disputes. This allows HR representatives to continue to serve the organization’s best interests while also providing an outlet for employees to disclose sensitive information without fear of reprisal.7 Some companies offer access to these third parties as an employee benefit in order to enhance employee confidence and trust in the investigative process by promoting its neutrality and confidentiality.
Learn to Handle Sensitive Information Confidently With Tulane University Law School
The online Master of Jurisprudence in Labor & Employment Law from Tulane University Law School provides you with an in-depth education in the legal aspects of HR practice, crucial for committed professionals in the field. Read more about our curriculum, which covers privacy in the workplace as well as employment discrimination law, negotiation, intellectual property and more, and master the legal intricacies of labor and employment law in as few as two years.
1. Retrieved on June 25, 2019, from jud.ct.gov/juv_infoguide/IJCP_LG_Privileges.html
2. Retrieved on June 25, 2019, from smallbusiness.chron.com/confidentiality-laws-between-hr-generalists-managers-78178.html
3. Retrieved on June 25, 2019, from blog.shrm.org/blog/hipaa-doesn-t-protect-all-employee-medical-information
4. Retrieved on June 25, 2019, from smallbusiness.chron.com/hr-departments-responsibility-confidential-personnel-files-59706.html
5. Retrieved on June 25, 2019, from usatoday.com/story/money/careers/2018/07/31/ask-hr-exit-interview-confidentiality/867150002/
6. Retrieved on June 25, 2019, from money.usnews.com/money/blogs/outside-voices-careers/2013/07/29/5-secrets-you-should-know-about-hr
7. Retrieved on June 25, 2019, from npr.org/2017/11/15/564032999/when-it-comes-to-sexual-harassment-claims-whose-side-is-hr-really-on