Internal Investigation | How to Exercise Power to Search Records

Internal policy adopted by modern employers often reserves for management the right to search records, such as email, created by employees.

Many employers require employees to sign agreements that they have no expectation of privacy in records on employer equipment or belonging to the employer (as in a bring-your-own [BYO] context).

Power versus Good Judgment

However, the fact that management possesses the power to search records does not necessarily mean it should.   Before undertaking to search through employee email or files, management should deliberate carefully and exercise good judgment.  Otherwise management risks alienating employees.

Likewise, even though an employer may require each employee to sign a BYOD agreement to the effect that management may confiscate and search the employee’s mobile device, management should be wary of actually doing that unless absolutely necessary.

Harvard Administration Criticized

The administration at Harvard University took criticism when it surreptitiously searched the emails of some 22 campus deans.  It searched the subject lines (not content) of emails in an
investigation of leaked secrets related to a student cheating scandal.

By policy the administration possessed the right to take the action.  The administration also believed its investigation was justified.  However, deans and faculty were outraged.  The email searching drew national scrutiny.

The administration seemed to be taken aback by the negative reaction.  It issued a public apology. "Harvard apologizes after secret e-mail search," March 12, 2013

The Power of Transparency

When management believes it does need to search records, what steps can it take to soften the emotional impact among employees?

One measure for management is to strive for transparency.  Management can try to inform employees how often searches occur and what their practical effect is.  Management can try to inform employees as soon as possible that a search has occurred.

Or, if management has the ability to prevent the destruction of records (e.g., with an email archiving system), then it can even tell the subjects of an investigation, in advance, that records will be searched and what the procedures for the search will be.

Management can win even more goodwill by engaging a neutral third party to

* conduct the search,

* observe its execution,

* limit is scope, or

* evaluate its outcome.

–Benjamin Wright

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