As an employer, what you say is just as important as what you do. Internal investigations carried out by HR, compliance and legal professionals are no exception. What you say about the investigation—to employees, your board, media and the other involved parties—is as critical as the steps you take to investigate the incident or accusation.

Even for the most tested teams, developing and disseminating thoughtful, transparent communications amid an investigation can be challenging. Determining what to say—if anything—about an investigation involves many fast-moving variables. Mistakes can easily cause unnecessary reputational harm and litigation risk for the organization and individuals at its helm.

Helpfully, a wealth of case studies can provide guidance on what—and what not—to say when helping your organization navigate and communicate about investigations. From a wide range of scandals that have played out in public—involving sexual harassment, accusations of ageism, abuse of power and bribery, among others—you can build a playbook that will help prepare your organization for whatever trouble lies ahead.

Know Thyself

Every organization will face crises that present complex communication challenges. Those who have taken the time to prepare for them will benefit. By developing procedures during times of calm and clarity, you can get ahead of a crisis—many are foreseeable—before it spirals out of control.

For many internal legal and communications teams, the biggest challenge is summoning the courage to have difficult conversations about what worst-case scenario risks might be around the corner. And while it's not easy to plan for hypothetical sexual harassment allegations against your CEO, being armed with drafts of messaging and media statements, and protocols for how to roll those communications out, will allow for an expedited and well-thought-out response if that actual crisis hits.

Get Your House in Order

Implementing an effective incident-response plan and tackling communications during challenging investigations requires a strong team. That's why it's important to assemble a team that includes seasoned experts in complex HR, compliance, legal and communications matters. Depending on the size and resources available internally, this team may include outside consultants in key areas where your organization has potential for exposure. The key here is having the right mix of personalities and expertise and at least one upper-management decision-maker who can help you get critical communications approved and out the door.

Without a bulletproof set of HR policies, an organization can be powerless to take action against an employee who has been found to have acted inappropriately. But just having good policies isn't enough. Companies must communicate and reinforce those policies, building them into their corporate culture so that they become part of the ethos rather than just a set of rules to govern behavior.  

Understand the Legalities—The Roles of Privilege and Confidentiality and NDAs

Understanding how to navigate attorney-client privilege, nondisclosure agreements and confidentiality issues during an internal investigation is undoubtedly the most critical legal challenge for the teams charged with running them.

A thorough discussion of attorney-client privilege should be part of any crisis preparation.  There are clear benefits to keeping information privileged, but there are risks, too. Hiding behind the privilege to restrict disclosure of information may not align with the company's overall communications strategy.

Confidentiality in HR policies should also be addressed, taking care to avoid overbroad restrictions and to tailor any need for confidentiality to legitimate business purposes (such as to prevent collusion of witnesses). Blanket rules requiring confidentiality likely run afoul of the law and may impede the company from fulfilling its duty to conduct a thorough investigation.

Finally, nondisclosure agreements (NDAs) in investigations are also important. Depending on state law, insisting upon an NDA as a condition of continued employment during or after a misconduct investigation may create legal risk. For example, some states have rules prohibiting non-disclosure provisions if sexual misconduct is alleged—even in a settlement.

Crisis Communications as an Opportunity

During an internal investigation, every piece of communication carries potential legal risk. Internal investigations are conducted not only to satisfy a legal obligation but because companies want to have workplaces free of harassment, abuse and hostility. As such, an investigation, especially a high profile one, can have implications that last long after the last interview is conducted. How well an investigation is conducted and the transparency with which it is communicated about can impact employee morale, recruitment efforts and company culture for years after the investigation concludes. Whether that's a positive or a negative is wholly up to the team responsible for it. If employees feel like the company is taking the investigation seriously, communicating about it transparently, and acting with the appropriate level of diligence, it can be an opportunity to build goodwill and even encourage employees down the line to come forward with a problem, rather than quitting and filing a lawsuit.

It is imperative to be thoughtful about messaging, tailoring statements appropriately to each audience, while making sure the information is consistent, and timing the distribution of statements appropriately so as to avoid appearing to prioritize one stakeholder group over another. Lastly, picking the right spokesperson can have a huge impact—either positive or negative—on how the messages will be received. Be thoughtful about who you choose, making sure their position in the organization and who they are as a person align with the message you're looking to deliver to a specific audience.

Crises often shine an unwelcome spotlight on the dark corners of our organizations, exposing people and actions that can, seemingly overnight, undo decades worth of brand goodwill and positive reputation. The upside here is that there are practical steps that can be taken to prepare for these challenging times, and teams of seasoned experts who have been through the gauntlet and can help you and your organization come out the other side unscathed.

Tamara Devitt is a partner in the Haynes and Boone Orange County and Palo Alto offices. She is experienced in counseling and representing employers in all aspects of labor and employment law. She regularly defends employers against claims of discrimination, unlawful harassment, wrongful termination, unfair business practices and wage and hour claims, including class actions and complex litigation.

Zach Olsen is president of Infinite Global, where he leads the firm's San Francisco office and oversees the crisis response and reputation management group. His work includes helping organizations and individuals prepare for and respond to crises that threaten their reputations, brands and bottom lines. Clients turn to him for strategic counsel on internal and external communications campaigns, high-stakes litigation PR efforts and for his expertise assessing and responding to public-facing crises.