USA – DISTRICT OF COLUMBIA Law and Practice Contributed by: Connie N. Bertram, Bertram LLP
In situations involving allegations of physical contact or other gross misconduct, employers should take measures to protect the complainant. Depending on the nature of the conduct, an employer may place the accused on paid or unpaid leave or take other meas - ures, such as a schedule or shift change, to reduce contact between the complainant and accused. How - ever, the employer should make certain that protec - tive measures are not viewed as retaliatory. Before changing the schedule of or placing the complainant to leave, the employer should co-ordinate with him or her and obtain his or her consent. If the employer decides to place the accused on leave, it should notify him or her of the reason for the leave, the anticipated period thereof and the expectations of the employer while the accused is on leave. If the employer is concerned about any retaliation against the complainant, it should direct the accused employ - ee on leave not to contact the complainant or any other employee and to remain off the premises. 4.2 Protection of the Respondent In any investigation, employers should take steps to protect the accused, who may or may not have engaged in the misconduct alleged in the complaint. The first step is to notify the accused of the accu - sations against him or her and provide him or her with a fair opportunity to rebut and present evidence responding to the allegations. The accused should also be advised of his or her obligations (i) not to engage in any conduct that could be viewed as retali - atory and (ii) to preserve all evidence relating to the allegations. If the investigation of the allegations is not han - dled properly, the accused assert claims against the employer or individual employees. Employees accused of wrongdoing have asserted claims against their former employers for defamation under state law. To reduce the risk of a defamation claim, an employer and its investigators should avoid sharing information concerning the investigation outside of the company, clearly refer to the complaints against the accused as allegations and use neutral questions (eg, “Has any - one ever...?”) during interviews.
Also, the accused may assert a claim against the employer for discrimination, claiming that employees accused of similar misconduct outside of his or her protected class were treated more favourably. Howev - er, as with other discrimination claims, the employer’s determinations in the investigation generally will be upheld if the decision-maker reasonably relied on the information uncovered in its good faith investigation of the allegations. 4.3 Measures Against the Respondent Any action taken against an accused during the investigation, such as a leave of absence while the investigation is being conducted, may qualify as an adverse employment action or as an implicit defama - tory statement. It is important for the employer, as part of its pre-investigation described in 1.7 Other Cases , to determine whether interim measures are necessary to protect the complainant or witnesses from retalia - tion or further mistreatment. In situations where there has been physical contact or threats of retribution, it is important, as described in 4.1 Protection of the Reporter , to take steps to protect the complainant and witnesses. Those steps may include: • placing the accused on administrative leave; • changing the accused’s shift so that he or she does not come into contact with the complainant or other witnesses; • allowing the complainant or other witnesses to work remotely during the investigation; • hiring security personnel to supervise and monitor the workplace; • notifying the local authorities of security concerns; and/or • supporting the criminal complaints of complainants or witnesses. As with a remedial action at the end of an investiga - tion, an employer’s decision to take an interim meas - ure will be assessed under the business judgment rule, which considers whether the employer’s decision was justified based on the information known to the employer through its good faith investigation.
454 CHAMBERS.COM
Powered by FlippingBook