IAPP-GDPR Web Banners-300x250-FINAL

Readers are encouraged to submit their questions to


This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

. We will tap the expertise of IAPP members to answer your questions.

Phil Gordon

Q: Internal investigations have become an integral part of managing an organization as employers confront an increasingly wide range of employee misconduct. Because investigators often surreptitiously collect information which the target considers private and the results of which can ruin a career, internal investigations can expose an employer to civil, and even criminal, liability as well as bad publicity. What are some of the steps which can be taken to reduce an organization's exposure?

A: Involve both Human Resources and Privacy Professionals in Internal Investigations. In many organizations, workplace privacy issues fall into a chasm between the HR Department, focused on employee relations but not privacy, and the privacy professionals, focused on consumer data protection. While HR professionals have become increasingly sensitized to privacy issues, they may not have the in-depth knowledge and "gut instincts" about privacy of a privacy professional. Having the input of both of these branches of the organizational chart will help to reduce risk.

Determine How Your Organization Will Lawfully Examine the Target's Email Without the Target's Express Consent. Unconsented review of email is a staple of internal investigations. Email stored on the organization's own servers generally is fair game provided that the organization has implemented and enforced a carefully drafted electronic resources policy which puts employees on notice that their stored email is subject to review in the organization's sole discretion. Members of the investigative team should be ready to raise red flags, and involve knowledgeable legal counsel, in more complex situations which inevitably will arise. For example, can the organization review email stored in an employee's company-provided, Web-based email account? What about work-related email stored on an employee's personal Blackberry? When is real-time interception of email permissible?

Vet and Control Your Private Investigators. Hiring, and contracting with, private investigators should be subject to the same due diligence and care applied to vendors entrusted with sensitive consumer information. Hire only those private investigators whom you are convinced will abide by the law's limits. Memorialize the relationship in a written agreement in which the private investigator, at a minimum, represents and warrants that it will use only lawful investigative techniques and will indemnify the organization for any damages resulting from a failure to do so. Require that the investigator describe and obtain approval for all investigative techniques to be used. Keep in mind that under agency law principles, your organization can not avoid liability by turning a blind eye to the investigator's actions.

Comply With the Fair Credit Reporting Act.
If your organization relies upon a private investigator to conduct an internal investigation of suspected misconduct related to employment, your organization must comply with the Fair Credit Reporting Act (FCRA) before taking adverse action based, in whole or in part, on the investigator's report. Under the FCRA, the report can be disclosed only to the employer and its agents, government agencies, pertinent self-regulatory bodies and as required by law. In addition, the employer must provide the subject of the report with a summary of the nature and substance of the report. The sources of information in the report, however, need not be disclosed.

Philip Gordon is a shareholder in Littler Mendelson's Denver office and chairs the firm's Privacy and Data Protection Practice Group. He also authors the blog, "Workplace Privacy Counsel" (www.workplaceprivacycounsel.com). He can be reach at


This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

or +303.362.2858.

This response represents the personal opinion of our expert (and not that of his/her employer), and cannot be considered to be legal advice. If you need legal advice on the issues raised by this question, we recommend that you seek legal guidance from an attorney familiar with these laws.


If you want to comment on this post, you need to login.


Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

Latin America Dashboard Digest

A roundup of the top privacy news from Latin America

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Get more News »

Find a KnowledgeNet Chapter Near You

Network and talk privacy at IAPP KnowledgeNet meetings, taking place worldwide.

Women Leading Privacy

Events, volunteer opportunities and more designed to help you give and get career support and expand your network.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

The Training Post—Can’t-Miss Training Updates

Subscribe now to get the latest alerts on training opportunities around the world.

New Web Conferences Added!

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Staff

Get your team up to speed on privacy by bringing IAPP training to your organization.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.

Learn more about IAPP certification »

Get Close-up

Looking for tools and info on a hot topic? Our close-up pages organize it for you in one easy-to-find place.

Where's Your DPA?

Our interactive DPA locator helps you find data protection authorities and summary of law by country.

IAPP Westin Research Center

See the latest original research from the IAPP Westin fellows.

Looking for Certification Study Resources?

Find out what you need to prepare for your exams

More Resources »

GDPR Comprehensive: Spots Going Fast

With the top minds in the field leading this exceptional program, it's no wonder it's filling quickly. Register now to secure your spot.

Be Part of Something Big: Join the Summit

Registration is open for the Global Privacy Summit 2016. Discounted early bird rates available for a short time, register today!

Data Protection Intensive Returns to London

Registration is now open for the IAPP Europe Data Protection Intensive in London. Check out the program!

P.S.R. Call for Speakers Open!

P.S.R. is THE privacy + cloud security event of the year, and you can take a leading role. Propose a session for this year's program.

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

Exhibit at an Event

Put your brand in front of the largest gatherings of privacy pros in the world. Learn more.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»