COMMUNICATING IN WRITING ABOUT PERSONNEL ISSUES WITH INDEPENDENT CONSULTANTS CAN RESULT IN LIABILITY
May 12, 2014
In a number of recent cases, we have encountered the thorny issue of whether and to what extent communications between a company and its independent HR consultants are confidential, or whether such communications must be shared with or provided to opposing counsel.
Ordinarily, discussions and documentation regarding personnel matters is treated as confidential and not shared outside of an organization. Occasionally, however, employers will seek advice from outside employment professionals – legal counsel, non-lawyer consultants affiliated with a law firm, or independent HR consultants. Communications between a company and its legal counsel are generally protected from disclosure by the attorney client privilege and will therefore remain private. Communications between the company's management or HR staff and outside HR consultants, on the other hand, may not be protected. Thus, in the event an employee files a charge of discrimination or asserts a claim in state or federal court, the outside HR consultant may be required to reveal the emails he or she sent and received from the company concerning the employee or to testify about the nature of the oral communications he or she had with company employees.
It can be devastating to a case when an email or text message containing sensitive information (e.g. strategy, harsh language, or justifications supporting an employment decision that are different from the justification offered to the employee) sees the light of day. With this in mind, please think carefully about when it is best to use an HR consultant or an attorney to help you handle your employment matters. We also recommend that you be cautious about what you say to others concerning personnel matters, particularly when sending emails or text messages.