USA – DISTRICT OF COLUMBIA Law and Practice Contributed by: Connie N. Bertram, Bertram LLP
4.4 Protection of Other Employees The same considerations apply to the protection of other employees, including those who are not involved in the investigation. If the accused is alleged to have engaged in conduct that is dangerous or threaten - ing, the employer should consider expanding the protections described in 4.3 Measures Against the Respondent to all employees or all employees who work in the same area. Employees who are injured because the employer did not take reasonable pre - cautions to protect employees from threats in the workplace can face civil claims for negligent supervi - sion, workers’ compensation claims, and claims and penalties under federal and state workplace safety laws. 5. Procedural Requirements and Proof 5.1 Requirements Other than contractual rights available to employees under individual employment contracts, employer pol - icies and CBAs, employees of private employers have limited rights during internal investigations: • as described in 3.7 Information , attorneys con - ducting witness interviews must notify the witness that they are counsel for the employer, they do not represent the witness and confidential informa - tion they disclose during the investigation may be shared with the company; • as discussed in 3.6 Support Person and/or Law- yer , employees may have the right under Section 7 of the NLRA to have counsel or another employee present during investigative interviews; • 2.3 Confidentiality Agreements and NDAs addresses the fact that employees may have the right to discuss the concerns that are the subject of the complaint with co-workers and encourage other employees to speak up; and • if the employer’s policies describe the procedures that the employer will follow during internal inves - tigations, employees may claim that these poli - cies form a contract that requires the employer to comply with them.
5.2 Internal Regulations An employer may adopt procedures or internal regu - lations that go beyond the limited rights described in 5.1 Requirements . Many larger employers have detailed procedures for conducting investigations to ensure that employees are treated fairly and consist - ently, reducing the likelihood of discrimination claims. If these procedures are viewed by a court as form - ing a contract or establishing a practice for handling complaints, failure to comply with them could trig - ger discrimination or breach of contract claims by employees. 5.3 Burden and Degree of Proof Discrimination, Retaliation and Whistle-Blower Claims Under what is referred to as the business judgment rule, if a plaintiff challenges an employer’s decision during or based on the results of an internal inves - tigation, the decision will be upheld if the employer made a reasonable, good faith decision based on the information before it at the time of the decision. A plaintiff may not challenge the decision based on evi - dence that he or she did not present in connection with the internal investigation, such as a new witness or exhibit. In the McDonnell Douglas burden-shifting framework, the employer has an obligation to proffer admissi - ble evidence showing that it made the challenged employment action because of the results of an inter - nal investigation. The employee then bears the burden of proving by a preponderance of the evidence that the justification is untrue or a mere pretext for dis - crimination. Faragher/Ellerth Defence When an employer relies on this defence in a supervi - sor harassment claim, it bears the burden of proving by a preponderance of the evidence that (i) it took rea - sonable steps to prevent and correct the harassment and (ii) the employee unreasonably failed to use the steps available to him or her to avoid the harassment. Contract Claims Because employees are presumptively employees “at will”, to prevail in a breach of contract claim, a plaintiff must show that he or she entered into an enforce -
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