“…[E]mployers are presented with circumstances on a regular basis that must be investigated effectively to avoid significant legal liability… [K]eep in mind that an internal investigation may become your defense in any subsequent litigation and therefore may be subject to significant scrutiny by the plaintiff, the plaintiff’s lawyer and possibly a jury.
As a result, conducting an effective internal investigation is critically important.” (Dinsmore & Shohl)
The National Labor Relations Board recently ruled that company policies mandating confidentiality during internal investigations are unlawful. (See NLRB Says “No” to Confidentiality in Workplace Investigations?)
Whether the NLRB’s position holds up – and employment attorney Scott Silverman (Akerman Senterfitt) suggests it might not because it conflicts with the EEOC’s policy of “maximum possible secrecy” – remains to be seen.
In the meantime, employers and HR managers still need to investigate accidents, allegations of fraud, discrimination, or harassment, and other workplace incidents. These five best practices should help:
1. Set goals early:
“At the outset, employers must establish the objectives of the investigation. Questions that should be addressed include:
- Are you trying to develop a complete record to justify a decision?
- Are you attempting to avoid litigation?
- What are your legal obligations?
- Do you need an attorney involved?
Evaluating the answers to these questions will allow you to tailor your investigation. (Dinsmore & Shohl)
2. Build a competent team:
“In assembling an investigative team, the company needs to ensure that team members have interpersonal skills needed to conduct the investigation. This skill is a critical factor in every investigation – the ability to conduct effective interviews depends on the ability to relate to the person being interviewed, to gain their confidence and to convince them that disclosure of the information is necessary. The ability of the investigation team to present the results of the investigation to senior managers, the company’s board, and the government, if necessary, depends on the ability to understand personal motives, influences and persuasion techniques.” (Michael Volkov)
3. Collect documents and establish the facts:
“Whenever a serious allegation of wrongdoing is made, the investigation team should quickly move to secure evidence with all investigative steps documented. They should gather documents and evidence, interview employees and outside vendors, if necessary. The investigators must pursue all leads to determine the extent of the wrongdoing… Additionally, all investigative material, including opinions and conclusions prepared by the team, must be labeled as confidential and separate files should be maintained to segregate the confidential material.” (Michael Diaz)
4. Take action based on findings:
“The employer must be ready to act on the results [of the investigation]. Failure to act on what is learned from the investigation could expose employees to potential hazards and expose employers to potential citations and fines.” (Lane Powell)
5. Protect participants against retaliation:
“Employees who make complaints may be legally protected from experiencing an adverse employment action. This includes complaints involving discrimination, harassment, safety violations, wage and hour violations and more. Do ensure against retaliation by continuing to monitor the situation.” (Dinsmore & Shohl)
Read the updates:
- It’s Time for Employers to Review Their Workplace Investigation Policies and Procedures – Akerman Senterfitt
- 10 Tips for Conducting an Internal Investigation – Dinsmore & Shohl LLP
- Best Practices When Launching an Internal Investigation (Part I of II) – Michael Volkov
- The Accident Investigation: A Study in Prevention – Lane Powell PC
- Tackling Internal Fraud: Weeding Out The Enemy Within – Michael Diaz Jr.
- NLRB Says “No” to Confidentiality in Workplace Investigations?
- Managers of Internal Sexual Harassment Investigations Should Play by the “Manager Rules” – Bradley Arant Boult Cummings LLP
- Second Circuit Issues Significant Rulings Regarding Internal Investigations and the Faragher/Ellerth Defense – Proskauer Rose LLP
- Eleventh Circuit Adopts “Manager Rule” and Rejects Manager’s Retaliation Claim – Ford & Harrison LLP
- You May Know Where The Bodies Are Buried, But That Doesn’t Mean You Can Sue Your Employer For Retaliation – Constangy, Brooks & Smith, LLP
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