Workplace Conduct Investigations Policy

Editor's Note: In light of the National Labor Relations Board decision in Stericycle, employers should work with legal counsel before implementing any conduct-related policy to ensure that it is narrowly tailored to the employer and advances a legitimate and substantial business interest. 

Purpose

The purpose of this policy is to provide guidance for conducting internal investigations of alleged unlawful discrimination, harassment and other violations of company policies, rules and standards of conduct. Maintaining [Company Name]'s reputation as a leader in the industry and our commitment to our employees to act with integrity and fairness depends upon the timely reporting of any suspected wrongdoing within the organization. No retaliation will be allowed against those who report a possible violation in good faith.

Nothing in this policy is intended to, nor should be construed to limit or interfere with employee rights as set forth under all applicable provisions of the National Labor Relations Act, including Section 7 and 8(a)(1) rights to organize and engage in protected, concerted activities regarding the terms and conditions of employment.

Applicability

All [Company Name]-operated sites in the United States.

Policy

This organization is committed to ensuring that all company-initiated investigations are conducted in a fair, impartial, thorough, and thoughtful manner and in compliance with all applicable laws within the United States.

Procedures

Whenever an agent of [Company Name] (for example, officer, manager, supervisor) receives a complaint or other information indicating a possible violation of law or [Company Name] policy, [Company Name] will conduct an investigation.

Responsibility

[Company Name] will promptly initiate an appropriate investigation into all possible violations of law and [Company Name] policy. The vice president of human resources (HR) or the HR department designee will have primary responsibility for investigating complaints relating to employee misconduct.

In certain situations, the legal department may assume responsibility for certain investigations and instruct other [Company Name] staff to gather information for the investigation. In such cases, the assigned investigator(s) will follow counsel's instructions relating to communications and evidence to ensure that "attorney-client" and "attorney work product" privileges are preserved.

Situations to be investigated

The following list, while not all-inclusive, provides examples of the types of situations that [Company Name] will investigate:

• Alleged conduct that potentially deprives a company employee or third party (for example, customer, persons or entities desiring to engage in business with the company) of rights because of race, color, religion, sex, sexual orientation, gender identity or expression, pregnancy, age, national origin, disability status, genetic information, protected veteran status, or any other characteristic protected by law.
• Alleged verbal or physical conduct that potentially denigrates or shows hostile feelings toward any individual because of race, color, religion, sex, sexual orientation, gender identity or expression, pregnancy, age, national origin, disability status, genetic information, protected veteran status, or any other characteristic protected by law. This includes conduct that has the purpose or effect of any of the following: 

• Creating an intimidating, hostile or offensive work environment.
• Unreasonably interfering with an employee's work performance.
• Affecting an individual's employment opportunity at the company. 

• Alleged conduct or intentional behavior that potentially violates [Company Name] policy or affects the safety or well-being of fellow employees, visitors, operations or other [Company Name]-related activities. [Include specific behaviors narrowly tailored to meet the business needs of the organization.]
• Claims relating to unfair labor practices.
• Conduct that violates [Company Name] rules, policies or standards of conduct or the law, while not limiting the ability of employees to organize and engage in protected concerted activity regarding the terms and conditions of employment.

Third-party investigator requirements

The vice president of HR or the HR department designee will approve the retention of any third party for purposes of conducting a [Company Name]-initiated investigation regarding employee misconduct. The third party must be professionally licensed if required by state statutory requirements and must provide evidence of professional liability insurance (i.e., errors and omissions coverage) prior to conducting any company-initiated investigation.

Confidentiality

[Company Name] investigator(s) will inform the complainant(s) that the [Company Name]-

initiated investigation will be handled on a need-to-know basis; however, if information is learned that staff action or legal action is required, there is a potential that disclosure of this information may occur in the process.

Retaliation

[Company Name] prohibits retaliation including making threatening communication by verbal, written or electronic means against any individual who reports or provides any information concerning unlawful discrimination, harassment or other violations of company policies, rules and standards of conduct. Any employee found to be engaging in retaliation will be subject to disciplinary action up to and including termination.

Risk assessment

[Company Name] investigator(s) will make a reasonable effort to ensure that the complainant(s) or person(s) providing information during an investigation are not exposed to any threats of violence, intimidation or personal risk. If any such situations are identified or have occurred, [Company Name] will proceed with the appropriate response, as advised by the HR department, legal department, security department or other professionals. Any [Company Name] employee found to have engaged in threatening behavior will be subject to disciplinary action up to and including termination, in accordance with [Company Name]'s workplace violence prevention policy.

Administrative leave

Subjects of the investigation may be placed on [paid/unpaid] administrative leave during the investigatory process as deemed appropriate by the vice president of HR and/or legal counsel. Administrative leave procedures are outlined in a separate company policy.

Investigative timeline

[Company Name] will make all reasonable efforts to initiate an investigation into the allegation(s) and conclude the investigation in a timely fashion, as appropriate.

Investigative tasks

The following steps should be undertaken as appropriate for the particular investigation:

Documentation of findings

Based on the investigation, [Company Name] investigator(s) should determine whether the allegations were founded, unfounded or inconclusive. This determination should be documented in writing and made part of the investigative report. The determinations are as follows:

• Violation found. Where a violation of [Company Name] policies, workplace rules or law is found to have occurred, the accused should be notified of the finding and of the specific or corrective actions to be taken. The accused employee's supervisor will also be notified if appropriate. No details about the nature or extent of disciplinary or corrective actions will be disclosed to the complainant(s) or witness(es) unless there is a compelling reason to do so (e.g., personal safety).
• No violation found. In this situation, the complainant and the accused should be notified that [Company Name] investigated the allegation(s) and found that the evidence did not support the claim.
• Inconclusive investigation. In some cases, the evidence may not conclusively indicate whether the allegations were founded or unfounded. If such a situation occurs, the notification to the complainant and the accused should state that [Company Name] completed a thorough investigation but has been unable to establish the truth or falsity of the allegation(s). [Company Name] will take appropriate steps to ensure that the persons involved understand the requirements of [Company Name]'s policies and applicable law, and that [Company Name] will monitor the situation to ensure compliance in the future.

Retention of investigative records

Unless advised otherwise by the legal department or the HR department, [Company Name] will retain records relative to a [Company Name]-initiated investigation for the greater of a period of five years or the minimum retention period required by law.

Release of investigative records

[Company Name] will not release any investigative files, including interviews and findings, unless authorized by the HR department or the legal department or pursuant to a court-authorized request (i.e., subpoena, court order).

Any information obtained and reported by third parties employed or engaged by [Company Name] concerning an employee's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living will be considered to be a "consumer report" under the Fair Credit Reporting Act. Accordingly, [Company Name] will provide notice to the employee that such reports have been received. The employee may request and obtain a copy of the consumer report.

Notice to government agencies

Before notifying any government agency concerning a [Company Name]-initiated investigation, the legal department will conduct a full review of the investigation and will determine what information, including documents, should be released to the government agency. Examples may include state licensing agencies or immigration officials when terminating foreign employees.