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
This resource is under review in light of the federal Defend Trade Secrets Act, effective May 11, 2016.
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