In an effort to reduce lawsuits, companies are pairing in-house counsel with human resources departments. While potentially helpful to a company in streamlining meritorious and non-meritorious claims, there are some risks.
Eileen M.G. Scofield, counsel in Alston & Bird’s Labor & Employment Group, said if a current or former employee is represented by counsel, it could be improper for in-house counsel to direct employers to speak directly to the employee about his or her claims.
“However, there is nothing improper about an employer, including its human resources personnel, communicating to a litigating employee about an investigation into the allegations of wrongdoing that the employee has made,” Scofield said. “Careful judgments should be used in this area. Often, an employer will make the request of a litigating employee for input into the investigation, and it will be declined.”
If the employee declines, Scofield said that the opportunity to provide information should be noted in the investigation file, but no adverse action should be taken against the employee for not participating.
“The employer should be careful not to take any actions against the employee that could be construed as retaliatory, unless there is a very solid and well-documented non-retaliatory reason for doing so,” she said.
Scofield also noted that all internal investigations should be undertaken with the knowledge that the aspects of the investigation are not protected from disclosure.
“If there is an anticipation of legal claims, and especially if there may be a question of impartiality, the employer should consider speaking to an attorney for further guidance on an investigation,” she said.
When asked about in-house counsel leveraging the Internet to help aid in the investigation, Scofield said that emails accessed from the employer’s network can be read, but employers should clearly communicate to employees in writing that they have no expectation of email privacy on company computers.
Additionally, Scofield said that in most jurisdictions, in-house counsel can check a litigant’s social media posts if the information is public and is obtained as part of a workplace investigation.
“Employers are at risk if they use the information to learn information about the employee’s background or discipline the employee,” Scofield said. “Oftentimes, in reviewing social media posts or other source of information about an employee’s background or history, employers may discover things they don’t want or need to know, and knowledge could create risks of other potential liability (e.g., other bases for potential claims of discrimination or negligent hiring or retention claims by another employee). Also, much of social media activity can be considered protected under the law and an employer should carefully consider any discipline for social media postings.”