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Human Resource and Labor Relations professionals (HR/LR) normally take the lead on workplace investigations of employee misconduct. Given that, they may also bear the blame for investigations that result in adverse employment actions that do not withstand litigation scrutiny. If a current or former employee challenges an adverse employment action via an EEOC or NLRB charge, a DOL complaint, a CBA grievance, or court action, the employer incurs significant expense and disruption simply defending the action. The employer’s exposure increases exponentially if the employer loses the case on the merits before a regulator or court. Consequently, HR/LR should devote sufficient time and attention to workplace investigations to avoid challenge in the first place, where possible, and to ensure the best chance of winning on the merits if a challenge does take place. But where to look for guidance? This blog answers that question and provides a checklist for HR/LR to follow to conduct employee misconduct investigations that will withstand litigation scrutiny.
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Following the recent wave of sexual harassment and assault allegations, a wake of news stories emerged about how HR departments have failed to conduct proper investigations into such complaints. Women claimed HR failed to write down their complaints or take any action; one woman claimed HR told her “We don’t want to get involved in this.” The stories asserted that HR “is supposed to protect the company’s interests,” not the employee’s.  But as any experienced employment lawyer or HR manager knows, HR cannot protect the company if it conducts a subpar investigation.

Two of the most common harassment investigation missteps include (1) using investigators that lack sufficient training about how to conduct an investigation, and (2) failing to involve legal counsel at the right time.

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Yesterday the Second Circuit cast doubt on whether an arbitrator can certify a class that includes absent class members.  The court remanded for the district court to decide “whether the arbitrator exceeded her authority in certifying a class that contained absent class members who have not opted in.”  Jock v. Sterling Jewelers, Inc., No. 15-3947-cv (2d Cir. July 24, 2017).  The case poses potentially big implications for class arbitration’s ability to resolve cases with finality.
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