Are you looking for a way to get sued when you investigate employee misconduct? Then prohibit employees from discussing the investigation with their co-workers. If you are scratching your head at that bizarre pronouncement, you are not alone. A federal agency that enforces employment laws recently decided that blanket confidentiality instructions to employees during internal investigations can violate the law and are not justified by the employer’s generalized need to protect the integrity of the investigation. There are, however, ways to minimize the risk of liability under this new standard.
Ignoring allegations of workplace harassment, discrimination, theft, or other misconduct increases potential liability on several fronts. On the other hand, a prompt investigation followed by appropriate remedial action can help insulate your company from liability. Most employers routinely instruct employees who are interviewed during an internal investigation to keep the matter confidential. Maintaining confidentiality not only reduces the chance that someone will destroy evidence or improperly influence witnesses, it also promotes anti-discrimination policies. For example, an employee who has been subjected to sexual harassment may be too embarrassed to complain if she thinks the circumstances will become widely-known. That, of course, is a ticking time bomb in your workplace.
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