USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
3.2 Participation Employers should have written policies in place that require employees’ participation in workplace inves - tigations. As discussed above, employers are obliged by law to conduct investigations to address Title VII violations (and EEOC guidance), to respond to viola - tions of other laws, to ensure safety (OSHA), to cor - rect misconduct, and to manage risks to the employ - er (negligence law). It is therefore important that all employees participate fully in any internal investiga - tion. When a Respondent Refuses to Participate If a respondent refuses to participate, the employer can respond in various ways. Investigators may pro - ceed without the respondent’s input. If so, the inves - tigator should document the respondent’s declination to participate and draw conclusions based on avail - able evidence, including considering the refusal when assessing credibility. An employer may also impose discipline for failure to co-operate. Many employer policies explicitly classify obstruction, dishonesty and the refusal to participate as misconduct. This could include termination if the refusal constitutes insubordi - nation, a violation of policy or a violation of compliance obligations. Courts have routinely upheld termination for refusing to participate in investigations, especially when the refusal prevents the employer from fulfilling legal obligations. Employers should also take interim protective measures, such as considering paid sus - pension of the respondent, establishing no-contact orders, limiting respondent access to confidential data, and potentially reassigning the respondent to protect any witnesses or others involved. Addition - ally, whistle-blower and other laws protect reporting employees. Employers should therefore take pains not to retaliate against a reporter for refusing to participate fully in an investigation. Determining the line between lawful discipline and illegal retaliation should be dis - cussed with competent counsel. When a Reporter Refuses to Participate If a reporter refuses to participate, an employer should nevertheless take steps to prevent recurrence of the allegation, even in the absence of complete informa - tion. The employer must conduct the investigation, which includes continuing to collect and review docu -
in the context of their employment. Such agreements must include carve-outs for employees to participate in government investigations and allow employees to report any illegal conduct by their employer. 2.4 Preliminary Investigation and Scope- Setting Whether a preliminary investigation can or should be conducted is dependent upon the facts of each poten - tial complaint or allegation. As discussed in 1.2 Bases , there are numerous instances in which employers are required to conduct thorough and timely investiga - tions. In those instances, employers should begin the full investigation as soon as possible. In instances in which there is uncertainty as to a particular allega - tion or if an investigation would not necessarily be required (potentially in one of the instances discussed in 1.7 Other Cases ), a preliminary investigation could be appropriate, although it is not typical. Employers should be aware that a preliminary investigation could delay what is actually a required or necessary inves - tigation, or may impact the availability of future legal defences in the event that a full investigation is not conducted. The scope of an investigation, including the number and types of witnesses interviewed, will vary signifi - cantly and depend heavily upon the specific facts of each allegation. Employers should typically interview the person alleging the misconduct, the subject of the misconduct, and any other individuals with relevant information regarding the allegation. Often that will include supervisors and direct co-workers of those parties involved in the allegation, but others may also have pertinent information to provide. Employers should ensure that enough individuals are interviewed in order to reach a determination as to the likelihood that the reported conduct occurred and that allows them to assess the credibility of witnesses. Ideally, employers should be able to corroborate witness tes - timony through other witnesses or evidence. 3. Interviews and Fact-Finding 3.1 Interviewees
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