Oregon Memo - Sexual Harassment Investigation Process - Workplace
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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.
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.
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.
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.
Various situations arising in the workplace can trigger the need for an investigation alleged discrimination or harassment, workplace bullying or abuse, inappropriate use of the internet or social media, theft of company property, fraud, policy breaches, statutory violations, allegations of just cause and so forth.
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.
What is the time limit of inquiry? The inquiry should be completed within a period of 90 days (Section 11(4)).
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.
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.
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.
