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
Two Missouri hospitals have agreed to pay $34,000,000 to settle allegations regarding False Claims Act violations, in a case that arose from a lawsuit filed by a whistleblower and that was later joined by the Department of Justice.
New York City freelancers may now enforce their rights under a new law, and the City as well as the Freelancers Union have engaged in a communications campaign to ensure gig workers are aware of their legal options.
The McLane Co., Inc., v. Equal Employment Opportunity Commission decision aligns the 9th Circuit Court of Appeals' standard of review for EEOC subpoenas with that of the other circuits.
The US Department of Labor (DOL) has issued a final rule that increases penalties assessed after January 13, 2017, for violations that occurred after November 2, 2015.
Updated to reflect provisions involving employee leasing arrangements under the Illinois Employee Leasing Company Act, effective January 1, 2017.
Updated to reflect law granting employees the right to inspect their personnel files, effective January 1, 2017.
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.
HR guidance on the importance of conducting thorough and objective investigations as a tool to guard against and/or defeat litigation.