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
Employment law class actions, especially in wage and hour cases, were certified at a record rate in 2019 according to a report that tracks and analyzes class action litigation data.
Numerous legislative changes take effect on or about January 1, affecting minimum wage rates, employee leaves, health care benefits and more. HR should take note of these legal developments and take appropriate steps to comply.
Updated to reflect the Farm Laborers Fair Labor Practices Act, effective January 1, 2020.
With many new California laws effective January 1, 2020, Littler's Bruce Sarchet sums up what the changes mean for employers with XpertHR Legal Editor David Weisenfeld.
Effective January 1, 2020, California employers will not be able to make use of mandatory arbitration agreements as a condition of employment. But a legal challenge is almost certain to the new law.
The California Supreme Court has ruled that employees may not recover claims for unpaid wages under the Private Attorneys General Act (PAGA) in any forum.
Federal labor law does not prohibit employers from promulgating mandatory arbitration agreements in response to employees opting in to a collective action under wage and hour laws, the National Labor Relations Board ruled in Cordúa Restaurants.
July 1 brings many new requirements with which employers must comply, covering topics such as gender-neutral restrooms, e-cigarettes, discrimination and harassment, minimum wage, leaves of absence and recruiting and hiring. This article provides an overview of trending topics in employment law and a list of all new requirements by state.
HR guidance on the importance of conducting thorough and objective investigations as a tool to guard against and/or defeat litigation.