management to come to an agreement
about how much information stays confidential, but full anonymity may hinder the investigation and in most cases
is not practical.
An internal investigation can be a
lengthy process, replete with unexpected
turns. New or duplicative allegations may
come to light, and contradictory stories
may be told. During the course of an
investigation, investigators should aim to
do the following:
Project integrity, ethics and
compliance
Be neutral and timely
Build rapport with witnesses
Be accurate and seek the truth
On the flip side, these are some don’ts
when conducting an internal investigation:
Don’t promise confidentiality when
not possible
Don’t intimidate or play “bad cop”
Don’t discount allegations without
investigation
Don’t discharge, demote or retaliate
against the complainant
PAY HEED TO LEGAL DEVELOPMENTS
ON THE HORIZON
At some point after the investigation is
complete or if litigation is threatened, it
may become necessary to resolve a claim
of harassment with the complainant. In
such circumstances, in-house counsel
should be careful not to rely upon old
form settlement agreements because they
may not comply with current state laws.
Confidentiality clauses are standard in
settlement agreements, prohibiting the
parties from disclosing the settlement
terms and any underlying facts. How-
ever, public criticism of confidentiality
clauses exploded after it came to light that
previous accusers of Larry Nassar, Harvey
Weinstein, Kevin Spacey and others had
signed settlement agreements with con-
fidentiality clauses, arguing the clauses
protected and encouraged repeat offend-
ers. Following this criticism, many states
passed or introduced laws that prohibit or
substantially limit the use of nondisclo-
sure agreements, confidentiality clauses
and mandatory arbitration agreements
in harassment cases. For example, New
York prohibits mandatory arbitration
and nondisclosure clauses in harassment
claim settlement agreements, unless the
victim prefers confidentiality. Although
businesses often consider nondisclosure
clauses to be a benefit of a nonlitigation-
based resolution, the changing landscape
means in-house counsel must be aware
of what is legal and what laws apply to
settlement agreements: raising questions
of jurisdiction, venue and choice of law.
The #MeToo movement exposed
significant flaws in the way workplace
harassment has been handled. Moving
forward, in-house counsel have ample
opportunity to work toward preventing
and handling workplace harassment by
remaining vigilant, respecting the complainant’s rights and staying abreast of
local and federal law.
Maggie Hickey is in Schiff Hardin’s white-collar
investigations and litigation group. Lauren
Novack is in the firm’s labor and employment
group.
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