February 2015 Bar Bulletin
Workplace Investigation Rights and Misconceptions
By Karen Sutherland
This article briefly explores some of the rights and misconceptions that apply to workplace investigations.
The Right to Representation. Employees who are represented by a union have a right to union representation at investigatory interviews where the employee reasonably believes the investigation will result in disciplinary action. This right is commonly known as the Weingarten right.1 However, the employer has no legal obligation to inform the employee of this right; the employee has to ask for representation.2
As set forth in Public School Employees of Washington v. Omak School District:
When an employee makes a valid request for union representation, an employer has three options: 1) Grant the request; 2) Discontinue the interview; 3) Offer the employee the choice of continuing the interview unrepresented, or of having no interview at all, thereby foregoing any benefit that the interview might have conferred upon the employee.3
Note that this right to representation applies to representation by a union representative only, not to representation by a co-worker who is not a union representative, nor does it provide for representation by a lawyer.
The Right to a Competent Investigation. There is generally no common law cause of action for negligent investigation.4 However, a harassment or discrimination investigation that is poorly conducted could result in liability because an employer "could be liable for the hostile work environment if it did ‘not promptly and adequately respond to employee harassment.' That means, it needed to ‘respond in a manner reasonably likely to end the harassment.'"5
The Right to Confidentiality. The EEOC offers the following guidance on confidentiality:
An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.6
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