Overview: Internal employee investigations are one of the most effective proactive measures HR has at its disposal to address problems in the workplace, improve business practices and performance, prevent litigation and where unavoidable, prepare a strong defense. In the process of conducting investigations, however, HR professionals should be mindful of state and federal law to ensure investigations are smooth, productive and lawful.
Some common issues that arise in connection with internal investigations include selecting the right investigator, how and whether to interview certain witnesses, whether to maintain confidentiality of a complaining witness, whether certain methods of investigation, such as wiretapping, run afoul of federal or state law, keeping proper records and deciding how or whether to act when an investigation is complete.
Trends: Employers with a unionized workforce should also be mindful of employee rights under the National Labor Relations Act (NLRA), which enables employees to discuss issues for the purposes of collective bargaining. Recently, the National Labor Relations Board ruled that across-the-board prohibitions on discussions of internal investigations likely violate the NLRA without a showing by the employer that the prohibition serves a legitimate purpose.
Employers without a unionized workforce should also be mindful of absolute restrictions on employee conduct in connection with investigations unless there is a compelling reason to restrict conduct. The common objective of an investigation is to present an open and honest finding to an outside fact finder like a judge, jury or government agency. Thus, unnecessary restrictions on employee conduct could be viewed as oppressive and may undermine the legitimacy of the investigation.
Author: Michael Jacobson, JD, Legal Editor
XpertHR's Retail Resource Center for HR helps retail employers handle their most vexing employment issues by bringing relevant resources together in one place for easy access.
When employees are injured at work, the vast majority of incidents will be governed by state workers' compensation schemes which provide for lost wages and medical benefits, while shielding the employer from civil claims for damages. However, despite the purpose of these state workers' compensation schemes, many claims result in disputes or litigation, which adds layers of cost, loss of productivity and distraction for employers. This How To helps an employer navigate through the workers' compensation scheme from injury to return-to-work in a manner designed to minimize disputes and to maximize productivity.
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.
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.
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.
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.
HR guidance on conducting and utilizing information obtained from internal employee investigations to reduce legal liability for the employer.
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