Florida Memo - Sexual Harassment Investigation Process - Workplace
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FAQ
An employer is required to conduct an investigation into incidents and complaints of workplace harassment that is appropriate in the circumstances. In other words, a formal complaint is not required to trigger an investigation.
Employers also may require witnesses (and even the complainant) to cooperate in their investigations. For example, in TRW, Inc. v. Superior Court, the California Court of Appeal held that an employer may discharge an employee who refuses to answer questions during the course of a security investigation.
Following its December 2019 decision holding that confidentiality mandates during the course of workplace investigations are presumptively lawful, the National Labor Relations Board (NLRB) recently held that employers can instruct employees to keep an open internal investigation confidential.
Prohibiting employee discussions of an ongoing investigation is allowed only if the employer can show that it has a legitimate business justification outweighing the employees' rights.
Don't Hesitate to Contact your HR Department The worst thing you can do is wait to contact your HR department and let your harasser continue their behavior. Harassment is unacceptable in any setting and should be reported right away. Human resources are there to help you feel safe and comfortable in the workplace.
When an employee comes to you with a harassment complaint, taking quick action is key. Inform the reporter that you are obligated to involve HR. Whether or not the employee is in danger, immediate reporting of the allegation protects them and your organization.
When an employee makes a report or complaint alleging sexual harassment or illegal harassment based on other protected characteristics like religion, race, age, disability and others, the employer has the legal duty to prevent and correct unlawful behavior, to quote state law.
Unfortunately, one of the reasons it is so pervasive is that it is so hard to prove. Proof can be extremely important in such cases for many reasons. It can make it harder for harassers to deny their behavior and avoid consequences. It can also make it harder for a business to simply ignore the behavior or cover it up.
Hint: the answer is usually yes. Their knowledge of law puts them in a good position to offer suggestions and identify potential law-related issues within the report. On top of being able to offer legal expertise, this reader also simply serves as an extra set of eyes.
If an employee refuses, that employee's supervisor should give a directive and order that employee to participate in the investigation. If the employee still refuses to participate, you may have grounds for discipline for insubordination, including termination.