USA – DISTRICT OF COLUMBIA Law and Practice Contributed by: Connie N. Bertram, Bertram LLP
their right to report. Also, regulated employers, such as federal government contractors, may have an obli - gation to report conduct uncovered in an investigation to authorities or regulators. 6.7 Other Communications Given confidentiality concerns, employers should carefully restrict communications concerning the results of the investigation. However, depending on the circumstances, employers should consider the following communications: • notifying witnesses interviewed during the inves - tigation that the investigation has concluded and that they should immediately report any retaliation to a designated official; • notifying the board of the results of investigations involving key company executives; • notifying senior executives of the results of the investigation; • notifying the managers of the accused of any remedial measures that were taken, particularly if the accused still works for the company; and • conducting training for the managers involved in the challenged conduct to reduce the likelihood that misconduct will occur in the future. 6.8 Disciplinary Measures If the allegations of the complaint are confirmed, the employer may take a range of appropriate discipli - nary actions, from a verbal warning to a suspension or termination. In determining the appropriate action to take, employers should consider its policies and prior practices, the nature and severity of the conduct, the accused’s position and responsibilities, and the accused’s history of prior violations. The decision- makers should document the justifications for its deci - sion and, where appropriate, be prepared to explain why it handled the situation differently than others. 6.9 Other Measures After an investigation, it is critical for the employer to assess the policies, practices and circumstances that may have contributed to the misconduct of the accused. Employers often find that certain depart - ments or areas of its operations trigger more com - plaints or that certain managers are not effectively enforcing its equal employment opportunity (EEO)
policies. Or, there may be a widely held belief, true of not, that employees who complain will face retaliation. Particularly if there is a pattern of complaints, the employer should consider whether it should adopt additional mechanisms to prevent future misconduct by the accused and other employees, such as: • enhanced workplace monitoring and oversight; • flexible work schedules, such as remote work; • building EEO compliance into managers’ perfor - mance evaluations; • more frequent or more effective manager and employee training; and • limiting access to alcohol at company events. The confidentiality of employee personal data is governed by a web of federal, state and local laws. Although a detailed discussion of these laws is beyond the scope of this article, employers and investigators should understand and comply with the following cat - egories of laws. • Medical information: The Health Insurance Port - ability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA) and its state and local counterparts require employers to store medical records in a confidential location that is accessible only by specified company personnel, such as employees responsible for working with employees with disabilities in identifying accom - modations. • Banking information: The Gramm-Leach-Bliley Act requires employers to maintain the confidentiality of financial and banking information. • Background checks: The Fair Credit Reporting Act and state laws regulate background checks by employers. 7. Data Protection 7.1 Collecting Personal Data • Personal identifiable information (PII): Information like social security numbers, addresses and birth dates are governed by state privacy laws. • Employment records: State law governs the main - tenance and accessibility of personnel records of employees.
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