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.
Author: Michael Jacobson, JD, Legal Editor
The Equal Employment Opportunity Commission (EEOC) released its annual Performance and Accountability Report (PAR) for Fiscal Year 2016. More than $20 million of the $482.1 million in total recoveries resulted from settlements of systemic investigations.
Updated to reflect information on case law regarding mandatory arbitration under the Uniformed Services Employment and Reemployment Rights Act.
Updated to reflect examples of retaliatory discipline included in OSHA guidance interpreting the anti-retaliation provisions of the electronic reporting final rule.
The 9th Circuit Court of Appeals has ruled that the Uniformed Services Employment and Reemployment Rights Act (USERRA) does not prohibit a mandatory arbitration clause covering employment discrimination claims.
Enhanced to improve the scope of coverage regarding billing disputes over responsibility for medical treatments, lien filing fees and lien filing process.
Updated to reflect forthcoming amendments covering penalties and credits, medical reimbursement disputes, reporting requirements and selection of medical providers.
Updated to reflect forthcoming law granting employees the right to inspect their personnel files.
Enhanced to improve the comprehensiveness, organization and scope of coverage and updated to reflect forthcoming requirements for employers to electronically report injury and illness data to OSHA.
Updated to reflect whistleblower immunity protections under the Defend Trade Secrets Act, effective May 11, 2016.
Updated to reflect the forthcoming paid family leave requirements.
HR guidance on the importance of conducting thorough and objective investigations as a tool to guard against and/or defeat litigation.