Workplace Investigations: Across State Lines and Borders
Many states have regulations and laws that govern workplace investigations, with particular attention paid to which professionals are allowed to conduct the investigation. California is a great example of this as they require licensed private investigators or attorneys for conducting such an inquiry. While internal HR personnel can look into grievances and misconduct in some cases (depending on the regulations of that particular jurisdiction), workplace investigators should familiarize themselves with their state's specific rules before beginning any investigatory work - getting legal counsel from qualified attorneys may be invaluable at this stage.
Understanding Workplace Investigation Regulation
First, let's start with the basics. There are state and federal laws that govern when an investigation must be conducted and then there are regulations about how it must be conducted.
In other words, states regulate workplace investigations in different ways. Some states have specific laws that govern how employers must conduct investigations, while others rely on federal laws or general employment laws to regulate workplace investigations.
For example, some states like California have their own Fair Employment and Housing Act (FEHA) that require employers to investigate complaints of discrimination, harassment, and retaliation. Similarly, some states have laws that require employers to take certain steps to prevent and address sexual harassment in the workplace.
Even if your state does not explicitly require an employer to take steps to prevent and address discrimination, harassment, and retaliation in the workplace, doing so is good business practice. It can also serve as the basis for potential affirmative defenses in the event you are faced with litigation later.
Additionally, some states have laws that prohibit retaliation against employees who report discrimination, harassment, or other misconduct. These laws may also require employers to protect the confidentiality of employees who report misconduct and to provide them with certain rights during the investigation process.
It's important to note that Federal laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) also provide protection for employees against discrimination and harassment in the workplace, and may apply in addition to state laws, depending on the size of the employer.
In summary, it's important for employers to be aware of the laws that apply to their workplace investigations, and to consult with legal counsel to ensure compliance with all applicable laws. For more details about workplace investigations generally, check out our blog post on Workplace Investigations for the Non-Employment Lawyer.
Who Can Conduct Workplace Investigations
Unauthorized Practice of Law Considerations
For attorneys conducting workplace investigations, they should consider the principles governing the unauthorized practice of law (such as the ABA Model Rules stating "a lawyer shall not practice law of the jurisdiction in violation of the regulation of the legal profession in the jurisdiction or assist another in doing so..."). This is important to the extent a lawyer looks to hire an external party to conduct a workplace investigation. With workplace investigations, a lawyer could potentially be engaging in the unauthorized practice of law if they hire an individual or entity to conduct a workplace investigation in a state where that individual or entity is not permitted to do so (such as a non-licensed private investigator).
But what about an attorney conducting a portion of a workplace investigation in a state where the attorney is not otherwise licensed? For example, what about a California-licensed attorney interviewing a witness as part of a workplace investigation in Florida? In some situations, ethics rules (like the ABA Model Rules) may allow for an exception to the unauthorized practice of law regulations if the lawyer is providing legal services on a temporary basis and if the lawyer's services are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted. As always, it is important to consult ethics rules in the jurisdiction in which the lawyer looks to conduct work to determine if the capacity in which they are providing services is permissible. Alternatively, a lawyer looking to conduct work in a state in which they are not licensed could also consider seeking admission on motion in that state (if available) or affiliate with a lawyer licensed in that state. Additionally, depending on the circumstances, the lawyer may qualify for special in-house counsel regulations.
What About Cross-Border Workplace Investigations?
Not surprisingly, there is an additional layer of complexity when cross-border workplace investigations come into play. In cross-border investigations, investigators must ensure that their investigation is conducted in a manner that is legal, ethical, and in accordance with the laws of all countries involved. It is important for cross-border investigators to be aware of any local regulations or laws that could affect the outcome of their investigation before it begins. Investigators should also take into account any local regulations regarding data privacy and security before proceeding.
As a best practice, lawyers looking to conduct cross-border workplace investigations should consult with a licensed attorney in that jurisdiction to understand the ethics of performing any work without a license.
By following these guidelines, cross-border workplace investigations can be conducted in a way that is legal, ethical, and compliant with both countries' rules.
In conclusion, this is just an overview of cross-border workplace investigation considerations. As the laws governing cross-border investigations vary from state to state, it is essential for investigators to familiarize themselves with those regulations before conducting their investigations. Additionally, investigators should take the necessary steps to ensure all information remains confidential and adhere to any local privacy laws. By understanding these regulations and taking the proper precautions, cross-border workplace investigations can be conducted in a way that is legal, ethical, and compliant with relevant jurisdictional laws.
Need help with a cross-border workplace investigation or workplace investigation services in California, Florida, or Ohio? Wagner Legal can help. Contact us to schedule a workplace investigation with our workplace investigation services today.
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