HR Support - Investigations & Employment Litigation

Editor's Note: Your defense against litigation is only as strong as your preparation.

Michael JacobsonOverview: In the event of litigation, an effective employee investigation can be extremely persuasive to fact finders like judges and juries. If the employer can show its investigation was prompt, thorough and impartial, it can reduce the employer's exposure. A proper investigation should demonstrate the employer's sincerity in addressing employee complaints, its wherewithal in fixing problems, and its objectivity in assessing the weight of evidence gathered from witnesses.

Employers should take prompt action in preparing for and during the course of investigations to ensure completeness and objectivity. It can accomplish these goals by quickly nominating the correct employee(s) to oversee various aspects of the investigation including interviewing key witnesses and making the final decision when the investigation is complete.

Trends: Employers often take measures to restrict employee activities during the course of investigations. In some cases, those restrictions are appropriate and relevant to the goal of the investigation. For example, if an employer directs employees not to discuss the details of an investigation, it may be justified in issuing such a restriction if it is important to maintain the confidentiality of the complaining witness(es).

However, employers may not issue unnecessary or overly broad restrictions that do not truly advance the goals of conducting the investigation. These types of restrictions undermine the objectivity of the investigation and may also run afoul of the National Labor Relations Act (NLRA) even if the employer does not have a unionized workforce.

Author: Michael Jacobson, JD, Legal Editor

Latest items in Investigations and Litigation

  • Conduct an Internal Investigation - Checklist

    Type:
    Policies and Documents

    Internal investigations are one of the employer's most effective tools to respond to complaints of discrimination, harassment, waste, theft, fraud or other misconduct. This checklist can assist you in deciding whether to investigate, crafting the investigation to be effective, and producing useful results.

  • How to Conduct an Internal Investigation

    Type:
    How To

    When employers need to investigate claims of harassment, discrimination or other workplace misconduct, the process of conducting an effective internal investigation can be challenging. This step-by-step recitation of the important issues and pitfalls of internal investigations will guide employers through the process, removing the guesswork.

  • Unions' Right to Witness Statements Expanded: Various Documents Updated

    Date:
    09 July 2015
    Type:
    Editor's Choice

    The National Labor Relations Board has adopted a new standard for a union's access to witness statements during the course of an investigation.

  • Internal Investigations: Federal

    Type:
    Employment Law Manual

    This section helps HR professionals conduct internal investigations or supervise internal investigations on behalf of an employer. The section discusses the legality of certain tactics used during investigations by employers and best practices for achieving thorough investigations with accurate results.

  • Employee Discipline: Federal

    Type:
    Employment Law Manual

    This section helps HR professionals and employers implement effective and compliant discipline policies and practices. Special attention is paid to special discipline situations, including absenteeism, theft, substance abuse and whistleblowing.

  • Alternative Dispute Resolution: Federal

    Type:
    Employment Law Manual

    This section helps HR professionals understand the alternative dispute resolution process, including mediation and arbitration, that allows HR and unions to resolve labor disputes in an expedited manner.

  • Workers' Compensation: Maine

    Type:
    Employment Law Manual

    In-depth review of the spectrum of Maine employment law requirements HR must follow with respect to workers' compensation.

  • Courts Will Make Sure EEOC Tries to Resolve Discrimination Claims Before Filing a Lawsuit

    Date:
    29 April 2015
    Type:
    News

    In EEOC v Mach Mining, the Supreme Court ruled that federal courts have limited powers to review the Equal Employment Opportunity Commission's attempts to end alleged instances of discrimination through informal methods before filing a lawsuit.f

  • Respond to a Workplace Incident Before Investigating - Checklist

    Type:
    Policies and Documents

    This checklist is designed to walk employers through the process of responding to a complaint or allegations before actually launching an internal investigation. Employers are obligated to take quick, effective and reasonable action in responding to workplace complaints, even before they conduct investigations or collect the results of investigations, in order to guard against liability and to protect employees from misconduct.

  • Internal Investigations Policy

    Type:
    Policies and Documents

    Internal investigations are crucial for employers in responding to allegations of workplace misconduct. This internal investigations policy document informs your employees as to the purpose of conducting investigations, what their rights and responsibilities are during investigations and how the employer will use the results it obtains in the course of investigating. Having an effective policy is the first step toward conducting an effective investigation.