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

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    Type:
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    Date:
    December 22, 2015
    Type:
    Editor's Choice

    This podcast examines new laws expanding California's equal pay statute, restricting E-Verify use and a flurry of minimum wage increases that are sure to impact employers in 2016. Anthony Oncidi, who heads the labor and employment practice group at Proskauer Rose's Los Angeles office, discusses the most significant developments.

  • Seventh Circuit Rules Against EEOC Regarding CVS Separation Agreements

    Date:
    December 18, 2015
    Type:
    News

    The Equal Employment Opportunity Commission (EEOC) may not broadly enforce separation agreements that may limit an employee's right to file a charge with the agency absent a conciliation attempt or an allegation that the employer engaged in discriminatory or retaliatory practices, the 7th Circuit Court of Appeals has ruled.

  • Date:
    October 28, 2015
    Type:
    Legal Timetable

  • California Equal Pay Law Changes Have Big Implications

    Date:
    October 16, 2015
    Type:
    News

    California Governor Jerry Brown has signed into law significant changes to the state's equal pay statute, leading him to call it, "The strongest equal pay law in the nation." Equally notable was Brown's veto of a bill that would have outlawed the use of mandatory arbitration agreements as a condition of employment.

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    Type:
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  • Investigate a Claim of Sexual Harassment

    Type:
    Liveflo

    Use this workflow to investigate a claim or report of sexual harassment in the workplace.

  • 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:
    July 9, 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.