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
Updated to include information on a Department of Labor Administration Review Board decision regarding the Sarbanes-Oxley Act's whistleblower provision.
Updated to reflect provisions involving employee leasing arrangements under the Illinois Employee Leasing Company Act, effective January 1, 2017.
Enhanced to improve the scope of coverage regarding billing disputes over responsibility for medical treatments, lien filing fees and lien filing process.
In-depth review of the spectrum of Florida employment law requirements HR must follow with respect to workers' compensation.
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 the forthcoming paid family leave requirements.
In-depth review of the spectrum of Maine employment law requirements HR must follow with respect to workers' compensation.
Use this workflow to investigate a claim or report of sexual harassment in the workplace.
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.