Conducting a Workplace Investigation
By: Greg Modd
COVID-19 has resulted in more than an increase in mask manufacturing. There has been a 30% increase compared to last year in whistleblowing. Claims include the employer failed to provide 6 feet distancing in all directions, lack of spacing when clocking in and out, break areas too small, not sufficient hand sanitizer, and lack of proper PPE. Whistleblowers can report corporate misconduct internally or externally. Additionally, claims around the Paycheck Protection Program regarding fraud have been submitting. The Sarbanes-Oxley Act of 2002 prohibits retaliation against whistleblowers. It also encourages whistleblowing and requires companies to create internal policies to promote whistleblowing. To synthesize, there is has been a plethora of chaos related to COVID-19 beyond the obvious.
How do leaders within your organization avoid these COVID-19 related claims? First and foremost, it’s highly recommended you encourage internal reporting early and often. It starts with onboarding employees and emphasizing the importance of integrity. Integrity is a catchy word companies and leaders like to use. Integrity includes ethics and morality. Ethics and morality come into play when your workplace is meeting OSHA guidelines. Organizational leadership chock-full of integrity ensure the workplace has COVID-19 policies and protocols. In addition to meeting current and applicable federal, state, and local orders and guidelines as well as industry specifics. If any violations take place, leadership take corrective actions immediately. This requires involvement form all levels but is influence from the top of the organization down.
It’s important to keep claims in-house. Internal reporting can include an outside workplace investigator. Penultimate People Consulting is a member company of the Association of Workplace Investigators. Using a 3rd party impartial workplace investigator can include the use of an anonymous phone line, text, or email. Generally, employees able to report off site via their personal email or phone will share all information with the neutral 3rd party due to minimized fear or retaliation. Employees may be apprehensive to report it internally to the human resources manager. This process can uncover other issues outside of the initial complaint. Companies can help mitigate the risk of being in that 30% if they thoroughly and promptly investigate. Documenting all the steps taken is important when conducting a workplace investigation. Leadership is highly encouraged to take corrective action where required. If not required, still ideal to communicate when applicable to stakeholders.
Crucial action step when conducting workplace investigations, is to go back to the initial reporting person (if they identify themselves) and let them know what steps the employer has taken. Even go as far as rewarding those who report safety issues. Be mindful of complaints by employees when contemplating any adverse employment actions. Timely documentation is important. If the employee reports a concern, and then finds themselves being written up after the whistleblowing takes place, you’re potentially opening your company up to a retaliation claim.
There are three elements to a retaliation claim:
Employee has engaged in a protective activity;
Employee has suffered an adverse employment action; AND
Causation – undeniable link between the protected activity and adverse employment action
Protected activity includes the Families First Coronavirus Response Act. Employers are prohibited from firing, disciplining, or otherwise discriminating against employees because an employee takes leave under the FFCRA. Family and Medical Leave Act is another protected activity to consider. FMLA contains anti-retaliation language. Occupational Safety and Health Act of 1970 prohibits employers from retaliating against employees for exercising rights.
There are many laws that protect your employees from retaliation. Increasingly in 2020 employees are starting to speak up and file claims in this COVID-19 environment. A great way for companies to mitigate the risk of defending a lawsuit is to ensure they are conducting a workplace investigation that is prompt, thorough, and unbiased. Contact us today at 231-855-4777 to discuss how you are managing and conducting your workplace investigations.