Workplace Investigations

By Ann Marie Zaletel, Jamie Chanin, and Andrew Crane

It is important that employers across the country conduct proper investigations into workplace complaints.  But these investigations are especially critical in California for a couple of reasons.  First, employees can bring claims in California courts resulting from a botched investigation.  An employee can sue for failure to prevent harassment, discrimination, and/or retaliation if the employee makes a protected complaint, and the employer either fails to conduct a prompt and thorough investigation, or does not take the appropriate remedial actions after the investigation.  Second, many plaintiffs’ attorneys in California retain HR experts to opine on all of the things the employer should have done to investigate, but didn’t, or all of the ways the employer botched the investigation.

These California-specific issues have led to more frequent requests from clients for guidance on how to conduct proper and solid investigations.  Here is a general overview of things to keep in mind when investigating employee complaints.
Continue Reading The Not-So-Wild West: Practical Tips for California Investigations

By Jill Porcaro and Andrew Crane

As a well-intentioned employer, you know it is best to promptly investigate employee claims of workplace harassment  and other employee misconduct.  Due to the obvious sensitive nature of these types of investigations, you implement a policy prohibiting your employees from discussing the investigation with anyone other than the investigator.  You believe that your employees will feel more comfortable disclosing truthful information to the investigator knowing their confidences are assured.  Great policy, right?

  • Not exactly.  Now, more than ever, the National Labor Relations Board (the “Board”) is cracking down on blanket confidentiality policies that prohibit employees from discussing investigations of employee misconduct, including the right to discuss discipline or disciplinary investigations involving their fellow employees, on the grounds that these policies “chill” employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”).

In Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), an employer had a policy of prohibiting its employees who made complaints from discussing the matter with their coworkers while the investigation was ongoing.  The Board held that this rule violated the NLRA because an employer must justify a prohibition by showing a “legitimate business justification that outweighs employees’ Section 7 rights.”

Well then, I’ll just nicely suggest to my employees not discuss the details of any investigation.  That ought to solve the problem, right?
Continue Reading A Rock and a Hard Place: Keeping a Lid On Internal Workplace Investigations