USA – NEW YORK Trends and Developments Contributed by: Tracey Levy, Simone Handfield and Raphael Lee, Levy Employment Law, LLC
Levy Employment Law, LLC 411 Theodore Fremd Ave
Suite 206 South Rye, NY 10580 USA
Tel: +1 914 834 2837 Fax: +1 914 637 1909
Email: Info@levyemploymentlaw.com Web: www.levyemploymentlaw.com
Workplace Investigations Are No Longer Novel Since #MeToo, the notion of conducting a “workplace investigation” in response to an employee complaint has gone mainstream. In many organisations it has become the standard approach to concerns that potentially involve serious policy violations, while a subset of organisations employ investigation tech - niques like intake interviews even for matters that seem to be of lesser significance. In New York State, conducting a workplace investiga - tion is not just a best practice; for sexual harassment complaints, it appears to be a legal requirement. The New York State Human Rights Law requires every employer in the state to have a sexual harassment prevention policy that includes “a procedure for the timely and confidential investigation of complaints that ensures due process for all parties”. There is no case law or other legal guidance in New York on what “due process” looks like in the work - place investigation context. And there is no legal man - date that an investigation be conducted at all outside the context of sexual harassment complaints. There are, however, best practices to be considered, which we are examining in two contexts: the latest trends in the types of complaints employees are presenting; and key considerations when selecting a workplace investigator. Employee Complaints: The Boost of AI “Intake” is the process of receiving an employee’s complaint. This usually involves a direct meeting with the complainant, during which the investigator’s focus
should be on gathering the full scope and context of the employee’s complaint. Following the intake inter - view, the investigator then needs to assess the issues being raised. • What are the concerns the employee has raised? • Which of the organisation’s policies are potentially implicated by those concerns? • What factual information has the employee pro - vided in support of each concern? Consider the written complaint Sometimes an organisation receives a written com - plaint from an employee prior to the initial intake meet - ing. Where the written complaint is received first, the investigator should review it, identify the issues it rais - es, and prepare questions for the intake interview to ensure that the employee speaks to all the concerns raised in the written complaint. Frequently there is more information to be shared, and additional details the employee can provide, through that in-person meeting. Those further details inform the investigator’s understanding of the concerns raised and are helpful in planning the next steps in the investigation. Recognising when AI has boosted a written complaint Typically, a written complaint is in the range of two to five pages, and largely in narrative form. It may begin or end with broad allegations, and be interspersed with terms like “harassment”, “bullying” or “toxic work environment”, but mostly it tells a story. Sometimes
462 CHAMBERS.COM
Powered by FlippingBook