Most modern workplaces have some form of a code of conduct; a written set of expectations available to all staff members that they can cite when faced with a conflict or issue at work. These codes of conduct are created alongside a range of federal, state, and local laws which govern workplace relations, abuse, and labor practices. Despite these safeguards, issues do happen, and organizations like yours have a wide range of escalatory steps you can take to address the issue. Although it is typically not the first step to conflict resolution, some organizations choose to address severe issues by undertaking a workplace investigation.
Many organizations view having a clearly defined investigatory process as an important part of workplace accountability and safety. Although such processes can be time consuming and difficult, they also help employees feel confident that any issue will be addressed fairly and handled with care. For mission-driven nonprofits, having such a process is also part of that mission, as it offers a path to resolution and allows employees to refocus on their important work. Here are some of the basic concepts behind workplace investigations and how you can go about creating an investigation policy:
What is a workplace investigation?
Although the exact process varies from organization to organization, broadly speaking, a workplace investigation is an internal process of confidential interviews, evidence gathering, and other fact finding efforts done to determine the validity and extent of any violations in workplace conduct. Investigations can be conducted by third-parties like lawyers or workplace investigation specialists, or sometimes by another employee of the organization. Great care must be taken to only use an investigator who is as impartial as possible and has no relationship to the accuser, accused or anyone else closely involved.
When and why are workplace investigations necessary?
As a part of a proprietary set of workplace conduct rules, the reasons for investigations can vary from organization to organization. However, generally speaking, they are conducted in cases when the alleged activity is a clear violation of conduct, and, quite often, of a federal, state, or local law. Some of the more common laws violated include laws against discrimination on the basis of gender, sexual orientation, race, nationality, age, disability status, or other characteristics, a violation of workplace safety rules outlined by the Occupational Safety and Health Act (OSHA), or sexual harassment complaints of any kind.
Legal considerations during an investigation
Because a workplace investigation is not always conducted by legal experts, the conclusion or results of the investigation should not be considered legal rulings, but rather potential violations of workplace conduct rules. Your key obligations during an investigation are to maintain confidentiality and privacy, to conduct your investigation impartially and without bias, to document your findings, and to cite all relevant documentation when reporting on any conclusions or recommendations.
The overall goal is to show that the conclusions your investigator reached were established in good faith based on the evidence found. When writing and developing your investigation plans, it is critical to understand that you are still bound by specific legal obligations, and that anyone involved in the investigations should be aware that these obligations will touch on everything from interview questions to scheduling. Here are some common examples of possible legal issues:
Whistleblower protections
Depending on the nature of the allegations, the accuser and any witnesses being asked to corroborate the accusation could be considered whistleblowers under federal law. Violations of labor law, occupational health, workplace safety, and other issues outlined by the Department of Labor put anyone reporting them under this status. As whistleblowers, they are protected from any retaliation. There are also specific whistleblower protections for those reporting workplace harassment, and there may be other state or local laws that also apply to anyone reporting similar workplace issues.
Privacy and confidentiality
Anyone agreeing to be interviewed or to provide evidence should know that they have the right to privacy, and that their testimony will not impact their standing or employment. However, pushing accusers, the accused, witnesses, and others to not discuss the details of the investigation with coworkers can also be considered a violation of the National Labor Relations Act (NLRA). Because coworkers discussing workplace issues is considered protected concerted activity, managers or third party investigators cannot directly or indirectly ask them not to engage in these sorts of discussions.
Weingarten Rights
If anyone being interviewed is part of a collective bargaining agreement (CBA), Section 7 of the NLRA grants them the right to request a representative from their union to be present to offer legal counsel during an investigatory interview. This is commonly known as their Weingarten Right, and they can request counsel from their shop steward, business agent, or other union officers, as well as from a coworker. Denying this right is considered a violation of the NLRA and could ‘taint’ the validity of your interviews should the investigation be used as legal evidence in a lawsuit or other context.
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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.
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