Workplace Investigations: Are Your Procedures Legally Defensible?

A workplace investigation is triggered when the employer receives a complaint, witnesses potential misconduct, or learns through other means that an employee may have engaged in conduct that violates company policy, federal or state law, or an employee's rights, and the first decision the employer must make is whether to investigate internally with company personnel or to retain an independent outside investigator who can provide greater impartiality and credibility. The scope of the investigation must be defined at the outset, because an investigation that is too narrow may fail to uncover related misconduct while an investigation that is too broad may violate the privacy rights of employees who are not legitimately the subjects of the inquiry.

Employee misconduct and discrimination and harassment counsel can advise on the specific triggering event assessment and investigation scope determination requirements and develop the investigation scope and documentation strategy.

When an employer retains outside legal counsel to direct a workplace investigation, the communications between counsel and company representatives are protected by the attorney-client privilege, but the employer must be careful to ensure that the investigation is conducted in a manner that is genuinely consistent with obtaining legal advice and not simply as a pretext for creating a privileged record. The Upjohn warning requires outside counsel to advise each employee interviewee at the outset of her interview that counsel represents the company and not the employee, that the conversation is protected by the company's attorney-client privilege, and that the company may decide whether to waive that privilege.

Corporate compliance and risk management and corporate governance counsel can advise on the specific investigator selection and attorney-client privilege protection requirements and develop the investigator selection, privilege preservation, and governance strategy.

An investigator who lacks impartiality undermines the credibility of the investigation and creates a basis for the party who received an adverse outcome to challenge the investigation's findings in litigation or before the EEOC, and every employee who is interviewed during a workplace investigation must be advised that the investigation is confidential and that she is expected not to discuss the investigation with other employees. However, the employer must be careful not to instruct employees that they are prohibited from discussing the investigation with outside investigators or government agencies, because such an instruction can violate the National Labor Relations Act.

Workplace discrimination and hostile work environment counsel can advise on the specific impartiality, confidentiality, and witness interview standard requirements and develop the impartial investigation procedure and witness interview compliance strategy.

The Weingarten doctrine, established by the Supreme Court in NLRB v. J. Weingarten, Inc., gives unionized employees the right to request the presence of a union representative during any investigatory interview that the employee reasonably believes could result in disciplinary action, and an employer that denies a valid Weingarten request commits an unfair labor practice under Section 8(a)(1) of the National Labor Relations Act. An employer that receives information suggesting that an investigation may result in litigation or regulatory proceedings must immediately issue a litigation hold notice requiring all employees who may have relevant documents to preserve them.

Evidence preservation and federal employment law counsel can advise on the specific Weingarten rights, Upjohn warning, and evidence handling obligations and develop the employee rights compliance and evidence preservation strategy.

Labor and employee rights and risk management counsel can advise on the specific investigation process legal framework and develop the comprehensive workplace investigation procedure, compliance, and documentation strategy.

Title VII of the Civil Rights Act requires employers to promptly and effectively investigate complaints of harassment and discrimination based on protected characteristics, and an employer that fails to conduct a prompt and thorough investigation of a harassment complaint may lose the Faragher-Ellerth affirmative defense to vicarious liability for supervisor harassment. Sections 301 and 806 of the Sarbanes-Oxley Act require publicly traded companies to establish internal procedures for receiving and investigating anonymous employee complaints about potential securities fraud, accounting irregularities, and financial misconduct, and the Dodd-Frank Whistleblower Protection Act protects employees who report securities violations to the SEC from retaliation.

Sarbanes-Oxley Act and whistleblower counsel can advise on the specific Title VII, NLRA, SOX, and Whistleblower Protection Act compliance obligations and develop the investigation compliance and regulatory obligation management strategy.

The credibility assessment requires the investigator to evaluate the relative credibility of conflicting accounts, assess the demeanor, motive, and consistency of each witness, and reach a conclusion about what most likely occurred on the basis of all available evidence, and an investigator who documents her credibility assessments transparently and thoroughly is in a much stronger position to defend the investigation's conclusions if they are challenged in subsequent litigation. An employer that concludes after a thorough investigation that misconduct occurred has an obligation to take remedial action that is reasonably calculated to stop the misconduct, prevent recurrence, and remedy any harm suffered by the victim.

Financial reporting investigations and compliance audit counsel can advise on the specific credibility assessment, findings documentation, and remedial action requirements and develop the investigation findings report and remedial action implementation strategy.

An employer that conducts a workplace investigation and takes adverse employment action as a result must be scrupulous in ensuring that it does not take any action that the complaining employee could characterize as retaliation, including terminating or demoting the complaining employee, reducing her compensation or benefits, or changing her job duties or schedule. An employer that is served with an EEOC charge in connection with a workplace investigation should promptly preserve all relevant documents, identify and interview relevant witnesses, and respond to the charge with a position statement that accurately describes the investigation and its findings.

Equal employment opportunity and workplace retaliation counsel can advise on the specific retaliation prevention and EEOC compliance requirements and develop the anti-retaliation policy and EEOC investigation defense strategy.

An investigation report that clearly describes the scope of the investigation, the witnesses interviewed, the documentary evidence reviewed, the credibility assessments made, the factual findings reached, and the remedial actions taken provides the employer with a powerful tool for defending the investigation's conclusions if they are challenged by a complaining employee, a former employee who was disciplined as a result of the investigation, a labor arbitrator, or a court. An employer that conducts a thorough, impartial, and well-documented investigation, takes prompt and proportionate remedial action, and ensures that all investigation participants are protected from retaliation is in the strongest possible position to defend against claims arising from the underlying misconduct and the investigation itself.

Wrongful termination and civil rights and equal opportunity employment counsel can advise on the specific post-investigation documentation and litigation risk defense requirements and develop the investigation documentation and wrongful termination litigation defense strategy.