Overview: 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.
Michael Jacobson, J.D., Legal Editor
A federal jury in Iowa recently awarded a verdict totaling $240 million to 32 farm workers who were subject to a hostile work environment harassment and severe abuse at the hands of their employer and supervisors. Despite the fact that this was the largest judgment ever obtained by the Equal Employment Opportunity Commission (EEOC), the agency told the Des Moines Register that the award must be lowered because federal law limits the compensatory and punitive damages each plaintiff can receive to $50,000.
Colorado has passed a new law that expands the types of discrimination lawsuit damages that employees of small business employers - those with 14 or fewer employees - may be entitled to. These damages include compensatory and punitive damages as well as attorney fees.
The Colorado EEO - Discrimination section has been updated to include a new law that expands the damages that an employee may recover in discrimination lawsuits against employers with 14 or fewer employees.
XpertHR has added several new documents to its stable of resources on internal investigations, including a How To on conducting internal investigations, an internal investigation checklist, an internal investigation policy to be distributed to employees and FAQs dealing with common issues that arise with investigations.
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.
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XpertHR's Transportation Resource Center for HR helps transportation employers handle their most vexing employment issues by bringing relevant resources together in one place for easy access.
The National Labor Relations Board (NLRB) recently provided additional guidance on the legality of restricting employee discussion of ongoing internal investigations. In a recent Advice Memorandum, the NLRB clarified how employers can lawfully restrict employee discussion of ongoing investigations and provided sample language for employers to include in their workplace investigation policies.
HR guidance on the importance of conducting thorough and objective investigations as a tool to guard against and/or defeat litigation.
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