USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
the extent it is possible, and protect against continued harassment and any threats of retaliation. A variety of laws require these protections, including federal workplace safety laws such as the OSH Act, state and federal laws prohibiting retaliation and protect - ing whistle-blowers, and laws that require employers to protect employees from continued harassment or discrimination. Employers may therefore employ protections on an as-needed basis and should assess the particular facts surrounding each allegation. More egregious allegations, including those involving personal safety, could be appropriate situations for suspending the respondent pending the outcome of the investiga - tion or instituting temporary changes such as remote work. Employers should be careful, however, when taking action that impacts a reporter, so they do not engage in illegal retaliation against the reporter, whether intentionally or unintentionally. For example, it could be seen as retaliation to require a reporter to work remotely, when a more appropriate action may be to require the subject of the allegations to work remotely or to be temporarily suspended. 4.2 Protection of the Respondent While there are no specific rights enumerated for respondents in the context of a workplace investiga - tion, employers should take actions to ensure fairness during the process. Respondents should be informed that an investigation is taking place and be advised of what entity will be conducting the investigation. While there are no blanket confidentiality requirements, employers should take every effort to preserve con - fidentiality. At the same time, employers should be up front with parties involved that total confidential - ity cannot be guaranteed. Employers should also be cognisant of potential defamation-related claims, par - ticularly when sharing information with third parties. To minimise the risk, employers should assess what information needs to be shared on an individual basis and attempt to limit the number of people involved in the investigation, while still achieving a thorough investigation. As noted above, there are a number of state and federal laws that place ongoing obligations on the employer to protect employees, particularly as it
relates to harassment, discrimination and retaliation. These obligations continue to pertain to respondents even during the course of an investigation. Employers should therefore be careful to ensure that a respond - ent is protected in accordance with such state and federal laws during the investigation process. Public employees who are the subject of investiga - tions may have additional protections, such as due process guarantees. In those instances, respondents may need to be provided with notice of the allega - tions at a particular time, and be afforded both an opportunity to respond and a more robust right to legal representation. 4.3 Measures Against the Respondent As noted above, there may be situations in which a respondent must be placed on administrative leave or directed to work remotely during an investiga - tion. To minimise potential claims by a respondent, such as defamation, retaliation or breach of contract, such actions should be framed as non-disciplinary and interim in nature, pending the conclusion of the internal investigation. Employers should assess the facts of each individual allegation to determine the appropriateness of these actions. Overall, an employ - er should prioritise stopping harm to employees and ensuring workplace safety upon receipt of a report of misconduct. Sometimes, the best practice will be to remove the respondent until conclusion of the investigation to prevent perpetuating the harm or potential new harm to others. This also may be necessary to preserve evi - dence and maintain objectivity of witnesses through - out the investigation. Failure to protect employees in the workplace could cause the employer to be subject to liability for viola - tion of a variety of laws related to workplace safety, discrimination or harassment. While employers are not required to wait until the con - clusion of an investigation to act, they must carefully calibrate any interim measures to ensure they are jus - tified, non-retaliatory and proportionate to avoid legal exposure and protect all parties involved.
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