USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
1.6 Prohibition on Carrying Out an HR Internal Investigation There are generally no prohibitions on an employer carrying out workplace investigations. However, employers should assess whether an investigation is appropriate if it is not required by law, as noted in 1.7 Other Cases . 1.7 Other Cases Employers should always conduct an investigation if it involves a possible legal violation or any matter for which they could potentially be sued. Employers should also consider how particular complaints relate generally to the workplace environment or morale issues. Investigations can often uncover systemic or widespread issues that can be addressed to cre - ate better morale or more productivity. Additionally, if there is a potential for reputational harm, an employ - er should take steps to investigate and address any issues to protect itself. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent The individual who makes a complaint or report is often referred to as the “complainant” or the “report - er”, and the subject of the complaint is known as the “respondent”. There are not usually explicit require - ments that private employers provide notice to a reporter or respondent of an investigation (although government or public employers may require such notice). Even so, notifying parties is often a neces - sary step for an employer to show compliance with the requirements of certain laws that require inves - tigations (by statute or through case law) or to help show that they are not engaging in retaliation should discipline be necessary. As a best practice, investigators should inform the reporter that their complaint has been received and that an investigation is being opened. Employers should also disclose the investigation to the respond - ent, as well as the purpose of the investigation and whether the investigator is internal to the employer or is external counsel.
procedures and be able to perform investigations competently. Additionally, investigators should be as impartial as possible and able to investigate without bias. Investigators should further be able to conduct investigations promptly and provide documentation of the process and corrective action. It is often best practice for employers to designate particular indi - viduals to investigate complaints to provide uniformity to the investigation and potential disciplinary process. Employers should consider whether it is appropriate to engage external counsel. In most instances, inves - tigations regarding complaints of misconduct can be conducted internally. However, engaging external counsel is preferable if the complaint involves upper management or leadership, if there is an enhanced need to maintain neutrality in the investigatory pro - cess, if there is a high likelihood of litigation, or if the particular issue is too complex or outside the scope of what internal investigators are equipped to han - dle. Ideally, external counsel would be brought into an investigation from the beginning, if the particular need for them is known, but that may not be practi - cable. Employers should be cognisant that external counsel may need to be brought into an investigation at any point during an investigation, depending on the circumstances. 1.5 Obligation to Carry Out an HR Internal Investigation Certain circumstances require that an HR investiga - tion be conducted. There are myriad local, state and federal laws, for example, that require workplace investigations, either by statute or through case law (although they need not necessarily be “internal”). Either by statute or case law, employers are generally required to investigate allegations of workplace har - assment (sexual or other), discrimination, retaliation or hostile work environment concerns under federal laws, such as Title VII, the ADA, the ADEA and cor - responding state laws. Employers also have a duty to investigate claims involving workplace safety, wage- and-hour disputes and whistle-blowing under such acts as the OSH Act.
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