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 New Jersey appellate court ruling concerning medical marijuana as a medical benefit.
Updated to include information on NLRB decisions relating to workplace investigations.
Updated to reflect the Farm Laborers Fair Labor Practices Act, effective January 1, 2020.
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.
Updated to reflect final version of the resource following a public comment period.
This section helps HR professionals conduct internal investigations or supervise internal investigations on behalf of an employer. The section discusses the legality of certain tactics used during investigations by employers and best practices for achieving thorough investigations with accurate results.
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.
HR guidance on conducting and utilizing information obtained from internal employee investigations to reduce legal liability for the employer.