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My boss posted someone's confidential performance evaluation…

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My boss posted someone's confidential...
My boss posted someone's confidential performance evaluation meeting notes in a common folder visible for us all to see and left them up for ten days, I and the coworker whose info was breached both caught it, and I'm unsure what to do.
Submitted: 3 months ago.Category: Employment Law
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3/15/2018
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 3 months ago
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,468
Experience: Employment/Labor Law Litigation
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Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance. (The system will automatically generate a phone call request to you. Unless I specifically state, during our discussion, that a phone call is possible, I intend to just use this chat format as I am not in a position to accept a phone call).

What was confidential about the notes? Did it contain bank information, health information, social security numbers, etc.? Does the company have a written policy making this information confidential?

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Customer reply replied 3 months ago
It was a performance review containing critical information about my colleague that was stated to her in a one on one meeting. It was placed in a common folder that the team all has access to and could easily be clicked on. It was not stated as confidential. It was left up for ten days and came on the hinges of another HR incident with a coworker of ours. It is a brand new office and it was alarming to see it, I screenshotted it as documentation in case the supervisor tried to delete it.
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 3 months ago

That is not confidential. At least, not legally speaking. Certainly, employers strive to keep such information private because it is a good business practice, but nothing in the law makes a performance evaluation legally protected confidential information, such that disclosure would be some sort of legal violation.

I agree that it is unprofessional, but if the employer doesn't care and there is not some sort of written confidentiality agreement that makes this information possess legal confidentiality that otherwise does not, there is nothing that can legally be done here.

If you have any further questions or other facts that you would like me to consider, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Please DON’T rate my service until after you have asked any follow up questions that you have, so that I have the best opportunity to earn all 5 stars. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Employment Lawyer: Allen M., Esq., Employment Lawyer replied 3 months ago

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care, have a great day and please don’t forget to rate my service.

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Customer reply replied 3 months ago
How can I tell if the confidentiality agreement we signed was legal? And apart from a legal manner, how do you recommend we handle it? I screenshotted the document and its file location in case it disappeared—should it be turned into Hr? And should i send you the agreement?
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 3 months ago

If there was a confidentiality agreement signed at all, it would be somewhat legal. The point is that, for this situation to have any true "confidentiality breach" the document has to have become confidential through something other than just it being sensitive information. Something has to actually make it confidential and an agreement that says it will be confidential is enough.

Here's the next problem. There is no agency out there that enforces confidentiality. This is going to be a personal lawsuit by hiring a local attorney to sue for breach of that confidentiality created by the agreement....basically a breach of contract claim against the employer. This is a fairly uncommon lawsuit, so you're going to have a difficult time, not impossible...just difficult, finding an attorney to sue for breach of a confidentiality agreement. The biggest issue is establishing damages.

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Employment Lawyer: Allen M., Esq., Employment Lawyer replied 3 months ago

There really isn't any other way to handle it. The employer here can't really be strong-armed into doing anything because there isn't a federal agency they have to be worried about coming after them.

Addressing it with the employer directly and then suing, if you must, is really the only option here for some sort of legal action. Establishing damages from the breach is going to be the difficulty.

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Customer reply replied 3 months ago
I’m more concerned if there is any chance I should even go to HR and report this or if I could rebuked for so doing
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 3 months ago

Retaliation is going to be a concern, yes.

Because this is not a specifically protected form of complaint, the employer could retaliate. Establishing damages then could be easier, because if a person were retaliated against that would make their damages more visible to the court, but we're talking about something that may not have a resolution for years.

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Customer reply replied 3 months ago
Part of the reason this was a concern is that there have been signs of a hostile work environment from day one. The same week this file was left up floating, there was an episode in front of some of us where a coworker was told they were talking back, pulled into the manager’s office, and later was crying and despondent and reported it to HR. This is a new office and HR is not physically here so how should I handle further concerns or patterns if you will of a hostile work place
Employment Lawyer: Allen M., Esq., Employment Lawyer replied 3 months ago

When you say "hostile work environment" are you referring to hostility based on race, religion, gender, age, disability or recent medical leave (FMLA) use?

If not, that is not legally a hostile work environment as defined by the Supreme Court. The high court stated that our employment laws are not a civility code for the workplace and are only narrowly crafted to deal with illegal forms of discrimination.

If you are speaking about generalized harassment, you have to be very careful in handling that, because courts consider it office politics and do not get involved. Your complaints to the employer HR would not be the protected form of complaints under Title VII/EEOC laws, unless they are directly related to discrimination based on one of the factors I mentioned.

If you cannot point to one of those factors, then what you really are describing here is a poorly run workplace that is unprofessional. At best, ***** ***** a breach of contract (your friend really) complaint against the employer for posting something that they had agreed to make confidential. The rest just establishes a very strong reason to seek other employment.

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Employment Lawyer: Allen M., Esq., Employment Lawyer replied 3 months ago

Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care, have a great day and please don’t forget to rate my service.

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