Frequently Asked Questions
Should HR or outside counsel conduct a workplace investigation?
It depends on the allegation, the people involved and the litigation risk. HR can handle many routine complaints well. Allegations against senior leaders, complaints that already involve a lawyer or agency charge, and matters where privilege is important usually call for counsel's involvement or an outside investigator.
How quickly should an Ohio employer start an investigation?
No Ohio statute sets a deadline, but the federal Faragher/Ellerth defense and Ohio Rev. Code 4112.054 both turn on whether the employer acted to promptly correct the conduct. Most employers acknowledge a complaint right away, put interim measures in place within days, and finish as quickly as the facts allow. Any delay should be documented with a reason.
Can an employer require employees to keep an investigation confidential?
A blanket confidentiality requirement can interfere with employees' rights under federal labor law, including in nonunion workplaces. Employers should instead consider whether a specific, documented concern, such as protecting witnesses or preventing interference with evidence, justifies a narrowly tailored instruction. In many circumstances, a request for discretion is more appropriate than a mandatory prohibition. Any instruction should preserve employees' rights to engage in protected activity and communicate with the EEOC, NLRB or other government agencies.
Does an employee have the right to bring a representative to an investigation interview?
Under current federal labor law, a union-represented employee may request a union representative when the employee reasonably believes an investigatory interview could result in discipline. The right may also apply to an employee interviewed as a witness if that employee's own conduct is implicated, but ordinarily not to a witness with no reasonable basis to fear discipline. Once a valid request is made, the employer may allow representation, discontinue the interview or permit the employee to choose to proceed without a representative. Nonunion employees do not currently have the same federal right, although collective bargaining agreements or Ohio public-sector law may provide additional protections.
Is the investigation report privileged?
It can be, if counsel directs the investigation to provide legal advice and the report stays within a limited group. Privilege can be lost through broad internal distribution, disclosure to outside parties, or a decision to rely on the investigation as part of the company's defense. The structure should be settled before the first interview.
