USA – DISTRICT OF COLUMBIA Law and Practice Contributed by: Connie N. Bertram, Bertram LLP
2. Initial Steps 2.1 Communication to the Reporter and the Respondent There are limited situations where a respondent must be notified of allegations prompting an internal inves - tigation. If the accused has an employment contract that allows the employer to terminate the accused for cause, the employer may be required to notify the accused of the allegations against him or her and provide him or her with an opportunity to cure the violation or misconduct. If the accused is a member of a union, the collective bargaining agreement (CBA) may require the employer to notify the accused of the alleged misconduct in a specified manner with - in a specified number of days and to take specific procedures in investigating or handling it. Typically, however, the accused should be notified of the accu - sations against him or her and strongly advised not to retaliate, interfere with the investigation or spoliate evidence. 2.2 Communication to Authorities Employers in regulated industries may have an obli - gation to report to regulators or prosecutors miscon - duct uncovered in internal investigations. The SEC, for instance, expects publicly traded companies to dis - close securities laws violations uncovered in internal investigations. The SEC has identified criteria employ - ers should consider in determining, on a case-by-case basis, whether, and how much, to credit a company’s self-policing, self-reporting, remediation and co-oper - ation. Some of these considerations include: • the nature of the misconduct involved and how it arose; • where in the organisation the misconduct occurred; • how long the misconduct lasted; • how much harm the misconduct has inflicted upon investors and other corporate constituencies; • how the misconduct was detected and who uncov - ered it; • how long after discovery of the misconduct the employer implemented an effective response; • the steps the company took upon learning of the misconduct; • the processes the company followed to resolve these issues and ferret out necessary information,
necessary, particularly if the employer is not required to report the violation. 1.7 Other Cases Case law emphasises the importance of conducting “immediate” and “timely” investigations. In situations where a Faragher/Ellerth defence may be available, for instance, an employer may lose their ability to assert a defence if they delay undertaking or completing an investigation. However, it is important for employers to quickly undertake a pre-investigation to make certain that they are considering all relevant factors implicat - ed by the complaint or report, particularly where the allegations are unclear or the employer needs addi - tional information to design and plan the investigation. A pre-investigation helps the employer understand the scope and topics of the complaint, the policies and laws that are implicated by it, the employees who must be recused from the investigation and whether remedial action needs to be taken before the investi - gation starts. This process can take as little as an hour or a period of days. The following factors are typically considered during a pre-investigation: • what is the nature of the alleged misconduct (eg, sexual harassment, financial impropriety)?; • do in-house personnel have the expertise to handle such an investigation?; • what are the sources of evidence that should be marshalled, preserved and collected in conducting the investigation?; • which employees may not participate in the investigation or decision-making because they are accused of misconduct or likely will serve as wit - nesses?; and • whether protections for the complainant, such as moving the accused’s shift or putting him or her on administrative leave, are necessary. By undertaking a pre-investigation, an employer will be in a better position to identify who should conduct the investigation, the evidence that needs to be col - lected and preserved, whether interim relief, such as a suspension, is necessary and the appropriate steps of the investigation.
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