When an issue arises in the workplace, it is important to understand the different types of investigations that can take place. Each type of investigation has its own set of procedures and objectives. By knowing what type of investigation is taking place, employees and employers can better understand their rights and responsibilities.
An internal investigation is when a company formally investigates whether there was a policy or legal violation in the workplace. The investigation will involve speaking to witnesses, looking at relevant documentation, and anything else that will help the company understand what happened and what do they need to do about it.
Sometimes the investigation will be short and only involve a discrete inquiry.
Other times, the investigation will be lengthy and involve investigating multiple issues. When an investigation is complicated, it can also be high profile. In this instance, an outside law firm will likely conduct an impartial investigation to protect the company and its employees and determine what disciplinary action needs to occur, and what policy changes need to take place.
In any investigative process, the company should review its internal personnel policies and what corrective action should take place. Decide whether discipline or termination should occur for the employees at issue.
Beyond discipline and potential termination, the company should look at whether it needs to implement different policies or make operational changes, whether it should get law enforcement involved, or if it should take legal action.
There are many different outcomes that could happen from an investigation, but the primary goal is to figure out what exactly happened. So, what types of investigations occur in the workplace?
Sexual harassment can occur when a supervisor tries to pressure a lower level employee to exchange sex or sexual favors for promotions or keeping their job. Another kind of sexual harassment occurs when an employee repeatedly makes improper comments of a sexual nature and in such a way that it is “severe and pervasive,” which meets the legal standard for sexual harassment.
Severe means it is really bad when judged by the standard of a reasonable person, and the type of workplace is taken into account. Pervasive is when it happens over and over again. So, a sexual harassment investigation will interview the complainant(s) (also known as the accuser(s)), any witnesses, and the alleged harasser, determine what occurred, and if discipline or law enforcement involvement is necessary.
All workplaces prohibit workplace violence, and most companies have a written policy prohibiting workplace violence. Our attorneys have conducted multiple workplace violence investigations.
Workplace violence can occur between two employees, between a supervisor and an employee, or an employee and a member of the public or a third-party such as a contractor. Workplace violence can involve an assault which could also have criminal implications for the attacker, or it could involve threats, harassment, or stalking.
Each state has different protected classes that apply to employees, and employers will want to ensure they are knowledgeable about what equal employment opportunity (EEO) laws apply to their workplace. These EEO laws shift depending on how many employees you have and where the employees are working.
Retaliation occurs when an employee reports something to management and as a result suffers negative consequences in their job, like termination, suspension, harassment, or demotion. A whistleblower is someone who reports wrongdoing to a third party, such as the government or watchdog agency.
Retaliation is a very common allegation that employees make against companies and can be present along with a charge of discrimination, harassment, or other wrongdoing. Whistleblower allegations are less common and tend to be more serious in nature. A whistleblower is typically reporting illegal behavior that can place the company in serious risk or have major implications for worker safety.
Some states have specific retaliation laws that allow employees to sue their employers in state court for damages stemming from retaliatory discharge. For example, Virginia has a general retaliation statute that allows a fired employee to sue their employer in court and receive attorneys’ fees and possible reinstatement to their former job.
When a company is accused of retaliation, it can be helpful to conduct an investigation to uncover the facts of what happened, and if a manager or employee is acting inappropriately. Likewise for a whistleblower allegation, it will be important for the company to conduct its own investigation to determine what occurred, and the company will want to be mindful that a government agency may try to obtain documents, records, and communications relevant to the allegation.
Government agencies in whistleblower matters may also conduct their own interviews, and so it can be wise to have a lawyer on the company’s side to best protect its interests during the course of the investigation.
Different family and medical leave laws apply to your workplace depending on what states your employees are working in and how many employees you have. One of the main ones is the federal Family Medical Leave Act (FMLA). Generally, the FMLA applies to workplaces with 50 or more employees, and provides qualified employees with up to 12 weeks of unpaid leave annually for medical and family leave purposes. FMLA gives employees job protection, meaning that when an employee takes FMLA leave, they have the right to return to their original or a substantially similar position.
There are states and jurisdictions with their own family and medical leave laws. The District of Columbia has adopted its own DC FMLA, which is much more expansive than the federal FMLA. The DC FMLA applies to companies with 20 or more employees and provides 16 weeks of medical leave and 16 weeks of unpaid family leave to eligible employees every 2 years. DC also has a paid family leave benefit available to eligible employees, typically DC residents if an employee works remotely, or workers that perform 50% or more of their job duties in the District.
Other states that currently offer benefits for family leave are California, New Jersey, and Rhode Island.
Owners, employees, or vendors who have access to sensitive financial information of the company can take wrongful actions that require the company to conduct an embezzlement investigation. In these instances, it’s important for the company’s lawyer to be particularly careful about conducting the investigation in such a way that it doesn’t cause harm to the corporate dynamics or the image of the company.
Fraud can also occur in the workplace in many forms, requiring an investigation to take place.
Examples of workplace fraud can involve kickbacks, improper dealings, or using corporate resources for an employee’s personal gain. Because these actions can have major impacts on a company’s bottom line and operations, experienced legal counsel is necessary to best protect the company from financial and reputational harm.
Unfortunately, some employees and affiliates of your organization may use social media in an irresponsible or illegal way. Examples of wrongful behavior include spreading false statements about the organization, disparaging the organization, or using social media to harass others.
The company has to be careful with handling disparagement allegations because certain eligible employees may be subject to the National Labor Relations Act (NLRA), which is a federal statute allowing certain non-supervisory workers the ability to collectively speak about their working conditions.
Our firm has been involved in several workplace investigations where an employee used a social media platform to post or message inappropriate content. Social media wrongdoing can have a devastating impact on an organization, and requires a fast-acting investigation to understand what occurred, and what remedial measures need to take place.
One of the worst types of situations to unfold in the workplace is one where an employee, worker, or individual is seriously injured or even killed on the worksite. The federal agency with jurisdiction over certain worksite injuries and fatalities is the Occupational Safety and Health Administration (OSHA), which also has state counterparts, such as the Virginia Occupational Safety and Health Administration.
These agencies, as applicable, will conduct their own investigation, and it is also critical for a company to conduct their own investigation into a workplace injury or fatality, to ensure that the events leading up to the incident will not occur again.
A wage and hour, or overtime, lawsuit is one of the most common lawsuits to be filed against a company. Companies that are not aware of overtime laws and how they apply to their business are at risk for major legal liabilities if they fail to pay overtime properly, or misclassify a worker as an independent contractor, when really they should be classified as an employee.
When a complaint is made by an employee about improper wage and hour practices, it’s necessary to investigate the employee’s classification and whether it was proper, the timekeeping practices of the company, and the pay records for the employee to ensure that the employee was being paid in accordance with law.
Sometimes a wage and hour complaint stems from gender-based pay disparities in the company. It’s critical to review employees’ compensation regularly to ensure legal compliance and keep your company out of court.
Many workplace investigations stem from allegations of general misconduct, or bad behavior. Behaviors such as yelling, making threats, rudeness, absenteeism, tardiness, gossiping, or substance abuse can lead to a workplace investigation to determine what occurred, and what disciplinary measures need to take place.
Generally, a company’s code of conduct or employee handbook will have examples of general misconduct that can lead to discipline or termination, and before taking these steps, sometimes it is necessary to conduct an investigation.
An employee or other individual can bring two different types of complaints that warrant an investigation: (1) an anonymous complaint; or (2) a formal complaint.
An anonymous complaint can occur if your company has an outside human resources (HR) hotline for your staff, or, sometimes a vendor or member of the public can raise an anonymous complaint.
An individual or worker can bring an anonymous complaint when they do not want to be involved in the company’s investigation, or are concerned about retaliation against them for making the complaint.
A formal complaint occurs when a worker or individual raises a complaint directly to the company’s attention and is willing to participate in the investigation. A company should have a formal complaint procedure outlined in its employee handbook so that employees know how and where to make complaints.
There is always going to be a certain level of wrongdoing or concerning behavior at an organization, and it’s important to set up formal channels to make the company aware of improper or illegal behavior so that it can address it and stop it from continuing.
Employment law generally groups harassment into three types: (1) sexual harassment, (2) harassment based on a protected class, and (3) general harassment. There can be overlap between these three types of harassment, but it’s important to identify what type of harassment is occurring to understand the company’s legal exposure, the risk to your workers, and to understand the impact the behavior has had across your workforce.
Ideally, harassment is limited to just one aggressor and one victim, however, in many cases, the aggressor will keep up the harassing behavior for as long as they can, until they face consequences.
Sexual harassment is actionable under Title VII of the Civil Rights Act of 1964 (Title VII), which is the federal discrimination statute, as discrimination on the basis of sex.
Sexual harassment can be sexual comments, gestures, requests for sex, making an employee’s position contingent on a sexual relationship, or a combination of wrongful sexual behavior toward an employee. Title VII applies to companies with 15 or more employees, and there are also state-level laws that can apply to smaller companies.
Harassment based on a protected class falls under discrimination in the employment law context and would also give rise to a Title VII claim if a company has 15 or more employees. Protected classes under Title VII include sex, sexual orientation, gender identity, race, color, national origin, and religion.
State-level laws can cover additional protected classes, such as political affiliation (DC), personal appearance (DC), and marital status (Virginia), among others. Also, discrimination and harassment liability exposure can occur if the employee is disabled, pursuant to the Americans with Disabilities Act (ADA), which also requires 15 or more employees for coverage.
If your organization has less than 15 employees, there may be state laws that you are subject to, so be mindful that disability is generally a protected class to be careful around. Virginia has the Virginians with Disabilities Act (VDA), which applies to Virginia employers with less than 15 employees.
General harassment can occur that is not sexual in nature and is not pertaining to any protected class. Your company should have a general anti-harassment policy to address this type of behavior in the workplace.
General harassment can take the form of bullying, stalking, aggressive behavior, extreme gossip, and so on.
Workplaces bring together many different types of individuals, and it’s important to be mindful that even though we like to expect professional behavior at all times, we are human, and there are going to be times when employees act inappropriately, or even illegally, and we have to be there to keep the workplace safe.
Evidence for an employment complaint can take many forms:
(1) written documents, such as emails with accompanying attachments;
(2) text messages or screenshots of texts;
(3) social media screenshots or social media messages;
(4) voicemails or voice recordings;
(5) oral witness testimony;
(6) Human Resources (HR) documentation, such as disciplinary warnings, performance improvement plans (PIPs), and other HR file documentation; or
(7) metadata/IT data that can be retrieved from corporate devices.
This is not an exhaustive list, but generally, when an investigation is taking place, the investigating law firm speaks with relevant witnesses to obtain the facts of the matter, to determine what occurred.
During witness interviews, the lawyer should ask what documents the interviewee reviewed to prepare for the interview, and if there are relevant documents or evidence, they can provide to the company to understand what happened.
Usually, an employee will have emails, text messages, screenshots, and possibly recordings.
The company’s lawyer should conduct a search of the company’s records to uncover what information the company already has at its disposal, such as emails, HR files, phone logs, timekeeping logs, or any other company records.
A workplace investigation can be extremely simple and short, or it can be very complicated and sensitive.
If your company is facing a difficult HR situation that requires outside legal help, and your company is located in DC, Maryland, or Virginia, contact the Lipp Law Firm today to schedule a consultation and know how to best protect your organization, its workers, and its operations.
Katie dedicates her practice to employment separation guidance.
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