Tag Archives: investigations

Employer Beware! Confidentiality and Integrity of Workplace Investigations At Risk

Contributed by Beverly Alfon

Whether you are operating with a union workforce or non-union workforce – this warning applies to you. When an employee engages in misconduct, most employers prudently begin an investigation before meting out discipline. These investigations often involve speaking to the alleged offender and other potential witnesses.  In the interest of protecting the integrity of the process, employers routinely ask the interviewees to refrain from speaking with others regarding the investigation or any related matters while the investigation is pending.  The National Labor Relations Board has found that this routine request is unlawful.    

In Banner Health System, d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), an employer’s HR consultant read from a prepared script on an “Interview of Complainant” form that the employer regularly used to begin investigatory interviews of employees. One of the standard statements instructed the witness that s/he was prohibited from discussing matters related to the investigation until the investigation was complete.  The Board found this directive to be a violation of the National Labor Relations Act.  It reasoned that the uniform directive “had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights” to engage in protected concerted activity.   The employer should have first determined whether or not it had “a legitimate business justification that outweighs employees’ Section 7 rights.”  The Board’s disapproval was focused on the employer’s “blanket approach” of imposing the confidentiality restriction for every investigatory interview.  Instead, the Board explained that an employer must make a determination, on a case-by-case basis:  “(i) whether witnesses [need] protection; (ii) evidence [is] in danger of being destroyed; (iii) testimony [is] in danger of being fabricated; or (iv) there [is] a need to prevent a cover-up.”  If one or more of these conditions exist, then an employer will have a stronger basis to argue that its interest in protecting the integrity of the investigation outweighs the employees’ Section 7 rights.

So, now what?  Review your investigation policies, procedures and forms. They may need to be tweaked to remove any language that may be interpreted as creating a blanket prohibition against the discussion of workplace investigations among employees.  Also, consider the inclusion of a four-point checklist on investigatory forms/documents to document a case-by-case consideration of the Board’s factors – before issuing a confidentiality directive to a witness.  Where a confidentiality directive would not be appropriate, “blitz” interviews or sequestering witnesses may be an option to preserve the integrity of the investigation.

Case Reminds Employers of the Importance of Conducting Prompt Internal Investigations!

Contributed by Jonathan Hoag

Once aware of workplace harassment, employers can avoid liability for its employees’ harassment if they take prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.  Employers are not required to successfully prevent subsequent harassment, but the action must be calculated to achieve that result. Prompt investigation into alleged harassment is the hallmark of reasonable corrective action. The following case is a great example.

Maetta Vance was the only African-American employee in her department at Ball State University.  She became subject to racially charged disputes with co-workers and began filing complaints in 2005 regarding her coworkers’ offensive conduct.  Her allegations included her coworkers’ use of racial epithets, references to the Ku Klux Klan, threats of physical harm, and other unprofessional conduct.

In 2006, Vance, unsatisfied with the responses from her employer, filed two complaints with the Equal Employment Opportunity Commission (EEOC) alleging, among other things, a hostile work environment.  The EEOC issued a right to sue letter and she filed suit in federal court.  The district court ruled in favor of Ball State Universityand Vance appealed.

The 7th Circuit began its analysis by determining if the alleged harassment was perpetrated by supervisors or coworkers.  The 7th Circuit noted that employers are strictly liable for harassment by a supervisor, but the employer may assert an affirmative defense when the harassment does not result in a tangible employment action.  If the harassment is from coworkers, the employer is only liable if the employee can establish that the employer was negligent in discovering or remedying the harassment.  While Vance attempted to allege that some of the harassment stemmed from supervisors, the court rejected Vance’s assertions and focused on whether Ball State University properly responded to Vance’s complaints.  The court found school’s prompt action to investigate Vance’s numerous complaints to be key in upholding the district court’s ruling in their favor.

The court determined that within a two-year period, Vance filed multiple complaints involving negative encounters with coworkers and that the school had investigated each and every complaint with the same vigor and calibrated its response and action based on the results of its investigation.  Additionally, Ball State took appropriate disciplinary action when it substantiated the allegations set forth in one of Vance’s complaints.  It was equally important that Ball State thoroughly reviewed each complaint and, even when it could not substantiate the alleged conduct, the school still counseled all parties involved about the importance of civility in the workplace.

Ball State University took reasonable corrective action because it did not begin to ignore Vance’s complaints, nor did it begin to accept simple denials from the accused parties.  Instead, the school investigated each and every complaint in the same thorough manner.  As such, the court concluded that there was no basis for employer liability.

This case provides a reminder to employers of the importance of conducting a prompt and thorough investigation upon notice or awareness of workplace harassment, no matter how incredible the allegations may seem on the surface.  In addition, to fully protect against liability for coworker harassment, employers should document the investigation and take some form of corrective action to appropriately respond and address the information obtained from the investigation.