USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
and-hour protections and whistle-blower protections. Given the various federal, state and local laws that cover this context across the United States, employ - ers should be familiar with the laws applicable in their specific locations. There are also a number of other laws and agencies that employers should be aware of when conducting workplace investigations. These include the following: • Equal Employment Opportunity Commission (EEOC): A federal agency responsible for admin - istering and enforcing civil rights laws prohibiting employment discrimination. The EEOC issues vari - ous opinions and decisions that provide guidance on the application of federal laws and which may serve as legal precedents. • National Labor Relations Act (NLRA): Guarantees the rights of employees to form, join or assist labour organisations; to bargain collectively through representatives of their own choosing; and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection. It also prohibits employers from interfering with such rights and outlines various unfair labour practices. • National Labor Relations Board (NLRB): A federal agency that investigates claims of unfair labour practices, adjudicates disputes and issues deci - sions involving labour relations matters, especially those that arise under the NLRA. • Occupational Safety and Health Administration (OSHA): A federal agency responsible for ensuring safe and healthy working conditions, especially as outlined in the OSH Act. It sets and enforces workplace safety standards, provides training and education, and investigates workplace hazards to reduce injuries, illnesses and death. • Family and Medical Leave Act (FMLA): Entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Thorough and well-conducted investigations, even if not strictly required, can also ensure that employers have access to certain legal defences in the event that they take adverse employment actions against an employee for misconduct. For example, in the event
that an employee who is a member of a protected class brings a claim of discrimination and bases it on having suffered an adverse employment action, a well-conducted investigation can support the employer’s legitimate, non-discriminatory reason for the employment action. The employer will need such a non-discriminatory rationale to prevail in any potential litigation. 1.3 Communication Channels Typically, there is discretion given to employers on the types of channels they can provide to employees for reporting misconduct, although this could vary by jurisdiction, with some state or local laws requiring specific procedures in certain instances. It is best practice for employers to establish clear guidelines and mechanisms for reporting misconduct or other concerns to ensure timely reporting and effective investigations that comply with applicable laws. Employers should also follow applicable state laws and recommendations from relevant state and federal entities such as the EEOC, by having clear written pol - icies defining prohibited conduct and the complaint process, providing accessible ways for employees to complain to the employer, and maintaining confiden - tiality to the greatest extent possible. Examples of channels for employees to report mis - conduct include: • a company-managed employee hotline; • an online complaint form; • reporting to a direct supervisor or manager; • a formal report to HR; or • a report to a legal or compliance department. The complaint process is not required to be anony - mous, but employers should strive to maintain confi - dentiality as much as possible and should have pro - cedures in place to ensure such confidentiality. 1.4 Responsibility There is no particular law defining specifically who must conduct HR internal investigations, but state laws, federal regulations, EEOC guidance, case law and risk management best practices provide guide - lines on the requirements for investigators. Gener - ally, investigators should be trained in investigatory
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