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Whether HR professionals are conducting internal investigations or questioning job candidates, they should be sure to follow appropriate procedures and processes to help prevent allegations of discrimination or harassment.

Monday, February 21, 2011
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Question: Do the subjects of investigations (i.e., the accused) have the right to review the complaints and witness-interview statements that were compiled during the investigation? What information needs to be provided to the subject of the complaints before, during and after the investigation?

Answer: No -- Subjects of investigations do not have a right to review the witness-interview statements or the complaint that spawned the investigation.

Whether or not subjects are provided with a copy of the complaint and interview statements is entirely up to the interviewer. However, doing so may often prove problematic for the interview process because, among other things, few witnesses will be candid if they know that their statements will be viewed by the accused.

Above all, employers must exercise reasonable care to insure that the investigation is conducted in a fair and thorough manner.

Therefore, if (based on the individual circumstances of the case) it is determined that the investigative process will not be fair or thorough unless the subject is shown the complaint and/or told who complained, then disclosure of this information would be necessary.

With respect to interview statements, it is highly improbably that failure to disclose to the subject of the investigation, the statements given by witnesses would hamper the investigative process. In fact, disclosure of witness-interview statements to the accused would likely do more harm than good by creating a chilling effect on potential interviewees and witnesses.

Also, disclosure may ultimately expose the employer to additional claims of harassment and/or retaliation should the subject, who has been provided with the statements, retaliate against the witnesses who made the statements.

Not surprisingly, when bringing forth a complaint, some employees are reluctant to disclose their identities for fear of retribution and/or retaliation from the accused. Therefore it is a good practice for employers to offer employees a means by which complaints can be brought to management's attention anonymously.

Because many complaints are brought anonymously, it is not uncommon for there to be situations where the identity of the complainant is either not known to the employer or where the complainants specifically request that their identities not be shared with the accused.

Fear of retribution is a very common concern; therefore, employers should make sure that their investigators are well-versed in the company's anti-discrimination, anti-retaliation and anti-harassment policies and that the investigators emphasize to all interviewees (subjects and complainants alike) that retaliation and harassment are strictly prohibited.

Even though confidentiality is important to a good investigation and employers should be sensitive to complainants' concerns with respect to confidentiality, the integrity of the investigation should not be compromised by efforts to maintain confidentiality.

Clearly, in order for the investigative process to work, investigators must (at a minimum) inform subjects of the investigation about the existence of the complaint against them and the allegations of the complaint.

Further they must provide the subjects with whatever additional information is necessary to afford them a full and fair opportunity to respond to the complaint's allegations. Failure to do so will result in an inadequate investigation.

At the conclusion of the investigation, employers should inform both the accused and the complainant of the investigation's outcome (i.e., whether or not wrongdoing was found to have occurred).

Employers are not required, however, to give either party a copy of the written report (if one is created), nor are they required to provide the accused or the complainant with investigatory notes, interview statements or written conclusions.

For further reading on best practices for conducting investigations, see my Dec. 28, 2009 Legal Clinic article, The Ins and Outs of Investigations.

Question: Is there a requirement for employers to maintain interview notes from the job-hiring process? Even if there is not a requirement, is it recommended? I thought interview notes should be shredded after the interview and that the only document a hiring manager should retain would be the application/resume and an evaluation or scoring sheet. Is this correct?

Answer: While many federal laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disability Act of 1990, the Age Discrimination in Employment Act and some state-law equivalents require a covered employer to retain application materials, such as employment inquiries, applications and resumes, these laws do not require an employer to maintain notes from the job-hiring process.

However, Section 503 of the Rehabilitation Act of 1973, as amended, requires employers with federal contracts or subcontracts to maintain interview notes from the job hiring process.

By way of background, Title VII and the ADA require employers to preserve applications and other personnel records for one year from the date that the record was created. 42 U.S.C. §§ 2000e-5(f)(3), 2000e-8(c), and 12117; 29 C.F.R. §§ 1602.14 and 1607.15.

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The ADEA requires employers to preserve such documents as job openings, job applications, resumes, other responses to advertisements, employment-test results, physical-examination records and records relating to refusals and failures to hire an applicant for one year. 29 C.F.R. § 1627.3(b)(1).

The U.S. Department of Labor's Office of Federal Contract Compliance Programs under Section 503 of the Rehabilitation Act of 1973, as amended, requires employers with federal contracts or subcontracts to preserve personnel and employment records for two-years from the making of the record or the underlying action (contractors with fewer than 150 employees or a contract of less than $150,000, however, need only keep these records for one year). 29 USC § 793; 41 C.F.R. § 60-1.12.

Personnel and employment records include all job postings and advertisements, applications received, interview notes, test and test results, records of job offers, referrals and the applications themselves. 41 C.F.R. § 60-1.12(a).

While not all employers are subject to the Rehabilitation Act, it is a smart practice to maintain interview notes that were relied upon to make the hiring decision for at least one year from the date of the decision in case the applicant who failed to be hired alleges that the decision was based on an unlawful or discriminatory business practice.

Because potential for liability at the interview stage in the hiring process can be tremendous, employers should take special care to ensure that their interview processes (like all employment processes) are nondiscriminatory, and that the interviewers and decision-makers are aware of and -- more importantly, in agreement with -- federal and state antidiscrimination laws.

Applicants should never be asked personal questions (such as questions about their age, ethnicity, marital/family status, religion, etc.), and interviewers should not focus on subjects unrelated to an applicant's ability to perform the essential functions of the job.

In this way, if notes are taken during the interview process, they will not be of the sort that will cause a neutral reviewer to infer or even suspect that the interviewer and/or the decision-maker considered or may have planned to consider, a characteristic protected by the discrimination laws.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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