Why "Off the record" Is not on!

The term “off the record” is a phrase used in movies and TV but misunderstood and dangerous in employment situations. 

It is a term used in journalism, mostly in America - where it has laws backing it up. These do not exist in Australia. It generally means: “I’m happy for you to have this information, but I don’t want people to know it came from me”.

A lot has been said about when an employee requests it of someone above them, but it is actually more risky when a manager requests it of an employee.

When an EMPLOYEE asks a manager to go “off the record”

This is usually done when a person wants to report bad behaviour of another, but worries about the backlash. Another version of this is when they ask for the manager to stop taking notes.

The problem is that the employee is highly likely to confide information that the manager then has a legal obligation to act on. So best practice is to calmly tell them you can’t do that, but encourage them to speak freely.

When a MANAGER asks to go “off the record” with an employee

Increasingly this phrase seems to be used by managers, for example to respond to a question they are uncomfortable about – “off the record?” – before they lean in and speak honestly. Some managers also use the phrase where they approach a person below them in the food chain about having a discussion “off the record” to sort out an issue between them. This is highly, highly problematic, for a number of reasons.

1. There is no such law! 

Australian law does not recognise “off the record” as being a legal protection. An employee does not have to keep what a manager tells them confidential. There are however other legal terms that do imply confidentiality in certain situations.

2. It is naïve to believe an employee understands and respects confidentiality

When a source says it to a journalist, they are saying it to a person who has training to understand the legal implications (or industry ethics code in Australia) of the phrase. They understand that it is not personal – just business. An employee however, may be highly offended or want to rely on information a manager tells them at a later date, particularly if it effects their employment or they become emotional about it. Employees can and do use this sort of information in unfair dismissal hearings; at the pub; on Facebook; with an inspector from a state body; and in court. It is naïve to believe that they will not, and risky to do so without keeping a record to defend yourself later.

3. It can be interpreted in unexpected ways

The phrase is so airy fairy that even journos can’t be sure what it means. For example does it mean:

• Whatever I tell you can’t be put in writing?
• I won’t admit to saying it?
• You can use the information but don’t quote me
• You can quote me but don’t say it came from me

 4. At best it is unskilled and at worst it is unethical 

There are good reasons why a manager might want to ask for this, but all of them have fear at their root. If you are a manager and you are effectively saying to people “I’m happy for you to have this information, but I don’t want people to know it came from me”, it says that you:

• could be too process or systems orientated and not comfortable having an informal discussion to build rapport with employees;
• are likely breaching the trust of someone, and possibly acting against the interests of the organization you work for;
• fearful of having an open and transparent relationship with the employee, except in these conversations; (secretive – see ‘Why all managers need to know how to throw a great party’ for more on this) 
• prepared to speak inappropriately to the employee eg. Tell them exactly what you think of them!; and/or
• don’t want to be held accountable for your actions

With all this, “must not! must not!” and warnings, what can a manager do?

A manager can stop being fearful about having honest and informal conversations – just do it – but always in a respectful and professional way.

A manager can do a sense check with someone else before having the conversation, eg. a person who is also aware of the information, or a person who understands the risks of giving it out.

A manager who does these things should be happy to be held accountable for increasing communication, building trust and making a work environment less clinical.