Workplace Personnel Investigations
Workplace misconduct allegations can pose significant legal and reputational risks to public and private employers of every size, including educational institutions. Investigations into allegations of workplace misconduct have always been a routine occurrence as employers address issues of potential misconduct and policy or legal violations.
When an employer learns of allegations of wrongdoing, our attorneys focus on helping with the critical process of investigating those claims. Our attorneys are sought out to conduct a wide range of significant, and often, complex workplace investigations. Conducting workplace investigations is an important process that puts a public or private employer in the best position to understand the facts and then make the appropriate legal judgments. We know legal judgements include making informed personnel decisions and litigation defenses. Our investigations reflect this knowledge. For public employers, we know the importance of due process obligations in conducting workplace investigations. We help clients protect their interests through sensitive internal investigations that ensure our clients make the right decisions to meet their legal obligations and mitigate risks.
What We Do
Personnel Misconduct Investigations
We assist with reports of wrongdoing brought directly to the attention of human resources, employee relations, or the general counsel’s office, or through such other means such as an employer’s hotline. We specialize in providing well-structured, targeted investigations on behalf of public agencies, private employers, and educational institutions, with minimal disruptions to the workplace. Our attorneys investigate an array of workplace misconduct allegations, such as violations of standards of conduct, ethical standards, drug and alcohol policies, outside employment policies, and whistleblower allegations. In conducting personnel misconduct investigations, we call upon our decades of experience litigating personnel disputes for employees and employers alike.
EEO and Faragher-Ellerth Harassment Investigations
We also specialize in conducting investigations into allegations of employment discrimination, harassment, retaliation, and other forms of allegations based on anti-discrimination in employment laws, as well as allegations EEO-like in nature. While many employers already have an EEO/Diversity office to address Title XII complaints, we know that management sometimes conducts its own investigation into these types of allegations. Our attorneys meet the EEOC’s training requirements to investigate such claims. This enables our attorneys to have first-hand knowledge of the EEOC’s standards for quality investigations into EEO and EEO-type claims.
For decades, employers have been addressing an ever-increasing number of workplace harassment and hostile work environment claims. When these claims are based on a Title XII protected category such as race, color, sex, national origin, or religion, most employers today have an anti-harassment policy in place to address them. These workplace policies are the result of two landmark United States Supreme Court cases in 1998 known as Faragher and Ellerth. These cases created an affirmative defense for employers from vicarious liability in sexual harassment claims brought against a supervisory employee. Since then, the courts have extended the affirmative defense to harassment claims of all other types of protected characteristics found in Title VII, such as race, color, national origin, and religion.
The Faragher-Ellerth affirmative defense has two conditions. If the employer can meet these conditions, it will have a complete defense to the harassment claim. Those conditions are: “(a) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775 (1998); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 765 (1998).
To prove the exercise of reasonable care to prevent and correct harassing behavior, most employers have an anti-harassment policy that includes a complaint procedure followed by a prompt investigation. These investigations are initiated and directed by management. We have extensive experience conducting these investigations. We know and meet the standards in the EEOC’s Enforcement Guidance on Harassment in the Workplace.
Non-EEO Harassment and Reprisal Investigations
Many employers prohibit harassment and retaliation in non-EEO contexts. Although Title VII law may not technically apply to reports of wrongdoing of this nature, we know how to navigate non-EEO based claims of harassment and retaliation.
Our Value Proposition
We handle the most sensitive matters. We use forward-thinking strategies, diplomacy, and tact to each investigation we handle. We understand the importance of confidentiality and minimal workplace disruption. We know the importance of conducting these investigations in a prompt and timely manner. Our experienced attorneys conduct interviews, prepare witness statements and/or summaries, provide briefings to management, and produce legally sufficient reports of investigation, with or without factual and legal findings, tailored to our client’s needs. We conduct investigations on our own or subject to the supervision and oversight of employee relations or offices of general counsel. We strive to conduct legally sufficient investigations from which an employer can evaluate its legal options.
Legally sufficient investigations for federal and other public sector employers may include due process obligations. We are uniquely qualified to assist public employers with meeting this legal obligation while promptly and effectively conducting workplace investigations. Because of our vast experience in Federal sector employment law, our attorneys are highly knowledgeable on modern day due process rules applicable to other public sector employers.
Once the investigation is concluded, there still may be work that needs to be done. Our public agency and private employer clients count on us to guide them in the aftermath of a workplace investigation through implementing solutions, corrective action, and litigation risk management.
Training for Managers and Supervisors
Our knowledgeable attorneys provide focused seminars (both virtual and in-person) to educate public and private management officials on important employment laws to help employers avoid and manage legal liabilities. Our primary goal is to enable senior management to take informed, proactive, and effective action, thereby reducing future liability.
For federal agency employers, we know that the federal personnel system is a complex set of rules and regulations, often confusing and misunderstood by agency internal HR specialists. We know that in many small agencies, the offices of general counsel often do not have staff versed in the complexities of the federal personnel system. But we do. We regularly assist federal agencies in unwinding these complexities to address sensitive personnel matters involving high level employees or employees in sensitive positions. In this role, we offer training to HR offices tasked with implementing the complexities of taking a disciplinary or performance action. Our training is also available to educate managers and supervisors in a more accurate understanding of the disciplinary and performance actions rules to better equip them to effectively perform their managerial duties. It shouldn’t be hard to address performance and misconduct matters promptly and effectively, but it is. We’re available to demystify the rules and help federal agency management manage the personnel process.