USA Law and Practice Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
4.4 Protection of Other Employees As discussed previously, employers must take steps to protect employees from workplace violence or credible threats, harassment or discrimination, retali - ation, hostile work environments, unsafe conditions, and known misconduct. Various state and federal laws require protection of employees in these situa - tions, including under federal and state laws such as Title VII, the ADA, the ADEA, the OSH Act, and cor - responding state human-rights and tort laws. Similar to the situations discussed above, employers should assess whether actions should be taken to protect other employees in the workplace in order to comply with applicable laws. Doing so could poten - tially require removal of the accused person during the course of an investigation. 5. Procedural Requirements and Proof 5.1 Requirements Under US law, there is no single statutory framework that mandates specific procedural guarantees for internal workplace investigations in the private sec - tor. Instead, the required steps depend largely on employer policies, contractual obligations and spe - cific regulatory requirements. Unless an employer’s own policies, a collective bargaining agreement or an employment contract imposes procedural require - ments, employers have significant discretion in how they conduct internal investigations. However, several important legal principles still shape best practices and can create legal exposure if ignored. Employer Policies and Contracts If an employer has adopted written investigation procedures (through a handbook, code of conduct or internal policy), it must follow them consistently. Failure to do so can expose the employer to claims of discriminatory/retaliatory treatment, breach of con - tract, or pretext in a discrimination or retaliation case. Unionised Employees (Weingarten Rights) In a unionised workplace, employees may be entitled to have a union representative present during inter - views that have the potential to lead to discipline. Fail -
ure to honour this right may constitute an unfair labour practice under the NLRA. ADA-Related Requirements and Accommodations Employees with disabilities may require accommo - dations to participate effectively in an investigation, such as a support person for communication-related disabilities, adaptive technology, modified interview formats, or additional time for responses. Failure to provide reasonable accommodations may expose the Although not mandated by a single federal statute, providing interpreters for employees with limited Eng - lish proficiency is often necessary to ensure fairness and to prevent miscommunication. Courts look unfa - vourably on investigations during which an employee could not meaningfully understand or respond to questions due to language barriers. Required Documentation and Record-Keeping While the investigation process itself is not dictated by law, record retention is. Employers must preserve documentation for specific statutory periods, such as: • EEOC: at least one year after the conclusion of an investigation or personnel action; • OSHA: injury- or illness–related records for five years; • State laws: often one to three years for personnel or investigative files; • Litigation hold: indefinitely, once the employer rea - sonably anticipates litigation. employer to liability under the ADA. Language Access and Interpretation Many states, such as Illinois and New York, permit employees to obtain copies of their personnel records. These records often must include investigative reports if information contained in those reports was used as a basis for an employment-related decision. Confidentiality and NLRA Limitations Employers may request confidentiality during an investigation only if justified by a legitimate business reason (eg, protecting evidence or preventing retali - ation). Under the NLRA, employers may not impose blanket confidentiality rules that prohibit employees from discussing workplace concerns, discipline or
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