USA – DISTRICT OF COLUMBIA Law and Practice Contributed by: Connie N. Bertram, Bertram LLP
1. Opening an HR Internal Investigation 1.1 Circumstances Investigation articles and trainings often focus on internal complaints by employees concerning har - assment or discrimination. However, investigations may be prompted by numerous communications and events such as: • written or oral complaints or other reporting from current or former employees; • demand letters from law firms representing current and former employees; • allegations of breach of company policy, such as theft of property; • allegations of misconduct by competitors, suppli - ers or others in the industry; • complaints to HR, legal, compliance or other inter - nal departments; • audit findings; • media reports containing misconduct allegations; and • inquiries from government officials concerning mis - conduct by current or former employees. 1.2 Bases A constellation of federal, state and local laws and judicial decisions impose obligations on an employer conducting an internal investigation. 1.5 When Is an Investigation Required discusses the laws that trig - ger an employer’s obligation to conduct an internal investigation. However, as an employer is conduct - ing an internal investigation, there are numerous laws that impact how the investigation can and should be conducted: • case law, such as the Supreme Court’s decisions in Burlington Industries, Inc. v Ellerth , 524 U.S. 742 (1998) and Faragher v City of Boca Raton , 524 U.S. 775 (1998), discussed in 1.5 Obligation to Carry Out an HR Internal Investigation , establishes how an employer can assert an affirmative defence to liability for sexual harassment and other claims; • the National Labor Relations Act (NLRA) and deci - sions of the National Labor Relations Board (NLRB) address confidentiality and other restrictions that employers impose during internal investigations, such as the confidentiality restrictions described
in 2.3 Confidentiality Agreements and NDAs and prohibitions on audio recording discussed in 3.10 Recording ; • state law concerning the scope of the attorney- client privilege during internal investigations; • state law restrictions on audio taping employees and conducting internal investigations, as dis - cussed in 3.10 Recording ; and • federal, state and local laws addressing the claims that may be asserted by the complainant or the accused challenging actions taken during the investigation or in imposing disciplinary actions against the accused. 1.3 Communication Channels Every company should – and some must – clearly out - line complaint procedures in their policies for reporting and addressing workplace misconduct. The employ - er’s policy should provide employees with multiple options for making reports, including an option that is anonymous. Although the policies will depend on the size and industry of the employer, policies typically offer the following options: • an anonymous hotline or on-line reporting mecha - nism; • specified employees in HR or the legal or compli - ance department; and/or • the employee’s manager or supervisor. There are laws in the USA that require employers in certain industries to have specified reporting mecha - nisms. For example, federal government contractors with contracts above a specified threshold are required to establish anonymous reporting programmes and publish their business ethics and reporting policies internally, and on their website. 1.4 Responsibility When an investigation is warranted, employers should, depending on the type and severity of the allegations, consider involving legal, HR and/or com - pliance personnel in the investigation. Unless a sen - ior officer is involved, allegations of discrimination or harassment are typically handled by HR or in-house or outside counsel. Allegations of fraud or impropriety are typically handled by compliance personnel and/ or in-house or outside counsel. Of course, employees
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