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
Updated to reflect whistleblower protections in the federal Taxpayer First Act, an amendment prohibiting discrimination based on reproductive health decisions in Hawaii, amendments to medical marijuana law in New Jersey and amendments regarding service animals in Rhode Island.
Updated to reflect whistleblower protections in the Taxpayer First Act, effective July 1, 2019.
On this podcast, longtime Proskauer employment attorney Anthony Oncidi and XpertHR Legal Editor David Weisenfeld discuss key developments from the Supreme Court's term, including its latest arbitration rulings.
The Supreme Court has ruled 5-4 that employees may not compel their employer to face classwide arbitration when an agreement is ambiguous as to whether the parties agreed to submit to class arbitration.
A broad New Jersey law now prohibits mandatory arbitration of all employment discrimination, harassment and retaliation claims, and also significantly restricts employers from using nondisclosure agreements as part of a settlement.
Google has announced it will soon end its practice of requiring employees to resolve employment disputes through arbitration as a condition of employment.
This podcast features tips from long-time workplace investigator Michael W. Johnson about how HR professionals can make their investigations into suspected wrongdoing more effective when interviewing witnesses.
Updated to reflect amended OSHA electronic reporting requirements as a result of its final rule, issued January 24, 2019.
HR guidance on the importance of conducting thorough and objective investigations as a tool to guard against and/or defeat litigation.