WINNSBORO — Should workplace investigations be kept confidential? Thanks to the efforts of Fairfield County Chamber of Commerce President Terry Vickers, local businesspeople received a briefing on that topic from David Dubberly with Nexsen Pruet, LLC.
That firm gives employment law speeches throughout the state, but it had been nearly eight years since they last were in Fairfield.
At a March breakfast meeting held at the Midlands Technical College Quickjobs Center, Dubberly explained a radical change with the National Labor Relations Board, that 99 percent of all private employers no longer can tell as a matter of policy that a workplace investigation must remain confidential.
That change applies to unionized and non-unionized labor. Cases involving wage and hour laws, sexual harassment, alleged theft, etc., are covered.
The NLRB is staffed by lawyers who are sympathetic with labor unions right now, according to Dubberly, so businesses have to adjust to the policy change.
In certain instances, it might be permitted to keep cases confidential to keep people from getting their story straight ahead of a deposition or trial. However, the EEOC still requires that sexual harassment cases be kept as confidential as possible regardless of the new NLRB rulings.
Employee handbooks, confidentiality provisions and social media policies must reflect this change. An employer cannot keep an employee from criticizing said employer on Facebook or social media.
Dubberly said his practice has noticed an increase in retaliation claims against employers and that some employees have an uncanny knack for knowing when they are about to be laid off or fired. That subgroup would then make a complaint and then the pending investigation would either allow that employee to remain on the job a while longer or it would set that employee up with a case to later accuse the company of retaliating against them and firing them for their complaint.
A thorough investigation of all complaints is a proactive way businesses can combat retaliation cases, which have increased 60 percent in just five years according to the U.S. Equal Employment Opportunity Commission.
If a complaint is filed, then a business and small business should notify its accountant, lawyer and its EPLI insurance carrier. A small business investigation can be headed up by an HR manager or the industry head. It might be prudent to contact the attorney general’s office, especially if the business is a public agency. Dubberly said lawyers can and do help state agencies who encounter such sticky situations.
When conducting an investigation, say into sexual harassment, the investigator should interview the complainant first and then other people if needed before interviewing the alleged harasser last. Ideally there should be a witness to each interview.
There is no legal requirement of how to conduct an investigation, but Dubberly said it is a good idea to have an official policy for investigations.He advised that each person interviewed during an investigation be required to sign a summary statement of the interview and what was said there. Ideally this summary should be completed within two days of the interview.
The final advice presented was that an employer should never terminate someone within six months of that person filing a complaint unless the employer has received legal advice that termination is appropriate.