Advisories & Insights

It's a familiar scenario: you are conducting a workplace investigation of allegations of harassment. You ask to talk to Joe, the accused harasser. He insists that his co-worker and friend Sam sit in on the interview. What do you do?

Until recently the general rule was that if there was a possibility that Joe was going to be disciplined, you had to let Sam sit in on the interview. Why? Because the National Labor Relations Board (NLRB), the federal agency charged with enforcing and interpreting laws relating to unions, held that Joe and Sam were engaged in "collective action" – that is, were doing something like forming a union – and were entitled to protection under the federal labor laws. This "right" to have a co-worker present was announced by the Supreme Court in the Weingarten case, which involved a unionized workplace. The NLRB extended this so-called Weingarten right to non-union workplaces in 2000.

But this summer the NLRB reversed course and held that non-unionized employees do not have the right to have a co-worker present during an investigative interview. The NLRB made this decision recognizing the importance of employer investigations to the modern workplace. An effective and prompt internal investigation – combined with an up-to-date employee handbook and employee policies – is often your best protection against a successful lawsuit. Internal investigations are no longer limited to sexual harassment but deal with everything from embezzlement to workplace safety hazards.

This new decision is an excellent opportunity to review your investigation procedures. Here are a few "best practice" tips based on our experience helping employers conduct internal investigations and defending employers who have done internal investigations:

Request confidentiality. Tell everyone that you interview that the conversation is to be kept strictly confidential and that any release of information may be a cause for discipline. Nothing undermines the effectiveness of an investigation like co-workers giving each other a "heads up" before an interview. However, you can't promise that everything a witness says to you, or even the witness's identity, will be kept confidential.

Follow the leads. Ask each person that you interview if there is anyone else that they know has information about the issue. Talk to that person. Don't assume what people would say. Follow the leads until you satisfied that you have the whole story and have talked to all witnesses named.

Emphasize non-retaliation. Tell each witness that it is impermissible for anyone to retaliate against them in any way because they participated in the investigation. Tell them to report any retaliation to you immediately.

Document, document. Keep careful notes of each interview. Type up your notes on what each person had to say, and have that person sign the summary. Then, do a final report summarizing the results of the investigations and making findings and recommendations for follow up action. Have someone else review the report before it is final.

Take action. Don't leave the appearance that the investigation "fizzled." Take action if your findings warrant it, and tell the accuser that action has been taken.

Bullivant Houser Bailey PC's Employment Law team assists clients with employment issues including litigation, training, and daily human resources management services. Please contact any member of our employment practice group if you would like assistance in reviewing your company's investigation policies.