USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
Investigating attorneys must also disclose to the par - ties involved and any witnesses interviewed who their client is (usually the employer) and that they do not represent the employees involved or interviewed. This is especially true if the employer’s interests may be at odds with those of interviewees or if there is any possibility of reasonable confusion (see ABA model rule 1.13 (f)). Before the start of any interview, investigators should provide what is called an “Upjohn admonition” to the interviewee, which is discussed in more detail in 3.7 Information . 2.2 Communication to Authorities Private employers typically have no affirmative duty to report most workplace misconduct; however, there are numerous laws that do require reporting. The OSH Act, for example, requires employers to report some safety matters to OSHA, such as work-related deaths or certain hospitalisations of employees due to work- related injuries. Various laws also require the reporting of certain crimes, such as those involving abuse of children or vulnerable adults, particularly if certain employers or employees are classified as mandated reporters under applicable law. Private sector employees who contract with government entities should also be cognisant of heightened reporting requirements when utilising gov - ernment grants or working pursuant to a government contract. There may be instances in which employers report misconduct, for example if criminal allegations are alleged, and the employer continues with an inter - nal investigation at the same time. As discussed previously, there are numerous require - ments for employers to conduct thorough investi - gations, whether a parallel investigation by another authority is happening or not. In those instances, employers can conduct their investigation while con - tinuing to co-operate with the outside investigation, unless authorities conducting the outside investiga - tion request that the employer stop or pause the inter - nal investigations. Each situation is fact-dependent and could be impact - ed by differing state and federal laws. Employers
should assess each situation individually and consult with legal counsel if there is any question about the need to report particular misconduct. 2.3 Confidentiality Agreements and NDAs Whether confidentiality agreements and/or NDAs can be used in the context of an HR internal investiga - tion is a fact-dependent inquiry that will also likely depend on which federal or state laws are applicable. In some instances, such agreements could be used by employers to protect sensitive data or information during an investigation, such as trade secrets. Fed - eral laws such as the NLRA and numerous state laws, however, may limit how confidentiality in the context of workplace investigations is imposed. Due to the evolution of decisions by the NLRB regarding employ - ment rights and the scope of employees’ discussions of workplace conditions, the use of NDAs in internal investigations is not a typical practice. There is particularly more regulation of NDAs in relation to sexual harassment and assault claims, especially before complaints are resolved. For example, the fed - eral Speak Out Act bars the use of pre-emptive NDAs in cases of workplace sexual harassment and assault. Workers cannot sign away their right to discuss sexual misconduct in the workplace upon onboarding, for instance, or during the course of an investigation, but they may opt to sign a confidentiality agreement as part of a resolution process. Further, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) prohibits arbitration clauses in cases involving sexual harass - ment and sexual assault that are signed prior to the resolution of a dispute. In other words, workers can - not covenant away their constitutional right to pursue action in a court of law in favour of arbitrating their disputes. The EFAA applies to claims that “relate to” sexual assault or sexual harassment, so it might even extend to related complaints such as wrongful ter - mination, misclassification, or intentional infliction of emotional distress. If NDAs are used, they cannot prohibit employees from reporting misconduct to authorities, including govern - ment agencies, and cannot silence employees about harassment or discrimination that they experienced
422 CHAMBERS.COM
Powered by FlippingBook