HR management of employee records often involves privileged communications, especially when dealing with employee disputes, investigations, and policy development. Legal privilege primarily operates under two categories. First, attorney-client privilege protects confidential communications between an attorney and their client made to seek or provide legal advice. Therefore, attorney-client privilege applies directly to HR's discussions with legal counsel regarding employee relations, potential lawsuits, policy reviews, etc. The second category under legal privilege is the work-product doctrine. It shields materials prepared by or for a business in anticipation of litigation, which often includes HR's notes, internal investigation reports, or analyses of potential legal claims.
Confidentiality (or secret keeping) is a key element of both of these protections. However, this protection can be lost if confidentiality is compromised or if the privilege is waived. Waiver can be voluntary when privileged communication is intentionally shared with those not directly involved or who do not have top-secret clearance. It can also happen involuntarily when privileged information is shared accidentally. For example, if an HR manager were to accidentally forward a privileged email chain to unauthorized individuals or discuss sensitive legal advice in an unsecured setting, privilege is broken and may sometimes be unrecoverable.
In order to avoid exposing confidential legal strategies and internal discussions, it is essential to implement strong practices and policies. Moreover, it is crucial that the plan to protect sensitive information extends to remote work environments. HR departments can ensure information security by first, strictly limiting access to digital and physical files based on an individual's role. Digital data should be encrypted and password-protected, while physical documents should be stored in locked cabinets or secure areas. When documents containing sensitive information need to be disposed of, it should be done following specific shredding protocols, whether internally or through a third-party shredding service.
Second, HR departments can safeguard communication by using platforms that ensure the security of sensitive information. Clear labeling should be used to identify privileged communications (e.g., "Attorney-Client Privileged" or "Prepared in Anticipation of Litigation"). When sending or forwarding sensitive information, double-check the 'To,' 'CC,' and 'BCC' fields to ensure privileged information is not sent outside the authorized group. It may even be helpful to include a "do not forward" warning to advise recipients not to include unauthorized personnel in confidential communications. These labels can also be used for virtual meetings on invites or announced verbally at the start of recorded meetings.
Third, HR should conduct investigations that involve legal counsel early on in the process to establish legal privilege, maintain strict confidentiality, limit access to investigation materials, and assign a single coordinator to manage information flow. Additionally, HR personnel should participate in regular training sessions to understand how to abide by the required level of secrecy and the risks associated with accidental disclosures.
Finally, HR departments should have a plan for a swift response in the event privilege is breached. When sensitive information is compromised, those involved or who discover it should immediately notify HR leadership, the legal department, or compliance officers. Leadership should then take immediate action to prevent further disclosure by revoking access, retrieving or relocating documents, and instructing recipients to delete all copies. Above all, the response plan should be followed regardless of whether individuals are working remotely or in the office.
HR professionals cannot manage the vast amounts of confidential information they are privy to without establishing plans to control and protect privileged data. After all, failing to plan is planning to fail.