USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
The Prinz Law Firm 1 E. Wacker Drive, Suite 1800 Chicago, IL 60601 USA
Tel: +1 312 212 4450 Fax: +1 312 284 4822 Email: Mtedeschi@prinz-lawfirm.com Web: www.prinz-lawfirm.com
1. Opening an HR Internal Investigation 1.1 Circumstances A variety of circumstances could give rise to inter - nal investigations being opened. The most common are complaints made by individuals who experience some sort of workplace misconduct, by someone who directly witnessed such misconduct, or by a manag - er or supervisor who became aware of misconduct. Activity that could result in the opening of an investi - gation could include, among other things, allegations of discrimination (based on protected classes such as race, colour, national origin, religion or sex), harass - ment, workplace violence, or a violation of other law or a workplace policy. Each instance is fact-dependent, however, and any potential misconduct brought to the attention of supervisors, managers or other employer leadership should be taken seriously and considered for further investigation. Supervisors, managers and HR personnel, particu - larly those on the front lines of HR complaints, should be trained to issue-spot and recognise misconduct. They should also be equipped to examine whether an investigation is necessary, even if only to provide counsel to employees. Furthermore, HR should make the decision whether to open an investigation into a matter. This should not be a decision put upon the employee or any other person who brings allegations of misconduct to HR’s attention. 1.2 Bases In the United States, there are a variety of laws that could impact whether an HR internal investigation must be carried out, including federal, state and local
laws. Judicial opinions and regulatory guidance, from both federal and state-level entities, could also create obligations for employers to open internal investiga - tions. Generally, employers are required to investigate alle - gations of workplace harassment, including sexual harassment, discrimination, retaliation, hostile work environment, or safety concerns under federal and corresponding state laws, including the following: • Title VII of the Civil Rights Act of 1964 (Title VII): Prohibits employment discrimination based on race, colour, religion, sex (including pregnancy, sexual orientation and gender identity) and national origin. • The Americans with Disabilities Act (ADA): Prohibits discrimination against individuals with disabilities in various aspects of public life, ensuring equal opportunities and access (employment, public services, public accommodation, telecommunica - tions, etc). • The Age Discrimination in Employment Act of 1967 (ADEA): Prohibits discrimination against persons 40 years of age and older in areas including, but not limited to, hiring, benefits plans and promotions. • Occupational Safety and Health Act (OSH Act): Requires employers to provide a safe and healthy workplace by setting and enforcing safety stand - ards, and by giving employees the right to training, information, and protection from workplace haz - ards. A variety of state and local laws also address har - assment and discrimination, workplace safety, wage-
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