Can HR Set a 'No Talk' Rule About Investigations? New Ruling Will Surprise You
Pull that employee handbook off your shelf right now: A standard HR investigations practice that you may have followed for years may now be unlawful, says a recent National Labor Relations Board (NLRB) ruling.
Attorneys have long advised employers conducting workplace investigations to make the employees they interview swear to stay quiet about the conversation. Now the NLRB has thrown that conventional wisdom out the window.
The agency said a confidentially clause used by Boeing was too broad, and it violated employees' rights to
engage in "concerted activity” to discuss the company's pay, benefits and working conditions.
Advice: Check your handbook for such "no-talk” confidentiality rules. It's now a red flag for an unfair labor practices charge–even if you're not a unionized workplace.
Find out how to respond to the NLRB's all-out attack on employer policies at The New NLRB Gone Wild session at the 12th annual Labor and Employment Law Advanced Practices (LEAP) conference, March 16-18, 2016 at the legendary Bellagio in Las Vegas. Take advantage now of our Early Bird special and save $200.00!
Promising confidentiality is the newest landmine in the legally risky process of HR investigations. Here are six other common mistakes that can spark legal troubles:
1. Ignoring complaints
Failing to take action on a complaint or choosing not to conduct an investigation after learning of allegedly inappropriate conduct can result in your organization being legally responsible for harm caused to any employee, client or others. Investigate regardless of how frivolous or unfounded the complaint appears—or who has complained. Note: Just because a complaint is anonymous does not excuse failure to investigate.
2. Taking too long
Delaying the start of an investigation may lead to employer liability. Particularly in harassment and discrimination cases, deciding to wait to begin an investigation may be viewed as subjecting the employee to additional unlawful behavior. Your timing goal: to strike a balance
between adequately preparing for the investigation and avoiding unreasonably long delays.
3. Conducting unlawful searches
Searching an employee's personal belongings or monitoring certain communications without consent can violate several federal and state laws. Avoid liability by informing employees of surveillance policies. Obtain their consent to monitor and access information on any devices employees use at work.
Participate in LEAP's Investigations Workshop. Discover how to plan, conduct and document a legally safe investigation during our two-hour Workplace Investigations pre-conference workshop at LEAP. This workshop is FREE for LEAP attendees, so grab those Early Bird discounts and save $200.00 by registering now!
4. Interviewing too aggressively
Aggressive tactics may result in legal claims such as false imprisonment and coerced confessions. More practically, you risk dissuading employees from cooperating in the investigation, thus failing to understand what happened. Advice: Conduct interviews in appropriate locations, outline questions in advance and use open-ended questions when possible, to get the entire story.
5. Failing to create a report
Document investigation processes and findings to support the company's action regarding the allegations. Failing to document evidence, results of interviews and other relevant findings is just as bad as failing to conduct an investigation. Prepare a report for every investigation. Include a summary of the matter; the identity of all parties and witnesses; a description of the documents, findings and credibility determinations; and recommended
6. Pulling punches at the end
Failing to reach a conclusion and take the necessary steps to address misconduct will ultimately expose the employer to legal liability. Once the report has been completed, a determination should be made regarding whether misconduct occurred and what appropriate actions should be taken.
The bottom line: How you respond to complaints of harassment or other misconduct can have huge legal implications on your organization. Come join us at LEAP to find out how to conduct the most effective and legally safe investigations possible.
See you in Las Vegas!.
Joseph L. Beachboard, Esq.
Moderator, LEAP 2016
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