January 17, 2021

Volume XI, Number 17

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Investigating Complaints Containing Second-Hand Information in the COVID-19 Era

As the country faces a wave of COVID-19 closure orders, individuals are being encouraged to report violations.  Hypothetically, these reports could originate from just about anyone – employees, employees’ family members, customers, neighbors, the general public.  Given the wide range of potential complainants, these reports may not always be based on first-hand observations.

When investigating complaints based upon second-hand information, investigators should obtain as much information as possible regarding how the complainant acquired the information and should attempt to verify the details through witness interviews or with relevant documentation. When interviewing the complainant, investigators should let the complainant share the story, in his or her own words, with the least amount of prompting possible. The investigator should do so by asking open-ended questions. For example:

  • What are the incidents that led to this complaint?
  • Who was involved in the alleged incidents? Who are the witnesses? Who else knows about the incidents?
  • Where did the incidents occur?
  • When did the incidents occur and how often?
  • Why is the complainant reporting the incidents?

Similar to an investigation of allegations from a supposed “first-hand” source, after the initial inquiry, investigators should identify the steps necessary to test the accuracy of the allegations and assess the complainant’s credibility, as well as the credibility of any second-hand information provided.

It is important to keep in mind that the sufficiency of the investigation process may play a role in whether an organization faces potential liability from the alleged misconduct.  An employer may face criticism for:

  1. Ignoring a complaint simply because it is based on second-hand information
  2. Delaying an investigation until it receives first-hand information
  3. Failing to interview the complainant and other relevant witnesses
  4. Allowing the investigation to drag on unnecessarily
  5. Failing to take appropriate corrective action

The duty to investigate allegations of misconduct arises from the receipt of a complaint, not from whether the complaint is based on first- or second-hand information. Ultimately, the knowledge obtained by the employer during its investigation is what matters in determining whether misconduct is occurring, not necessarily how the person reporting the suspected misconduct came to possess that information.

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Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 98
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About this Author

Joseph C. Toris, Confidentiality, non-competition agreement, restrictive covenants, Jackson LEwis Law Firm
Of Counsel

Joseph C. Toris is Of Counsel in the Morristown, New Jersey, office of Jackson Lewis P.C. He is experienced with complex issues surrounding employee disloyalty, enforceability of confidentiality and non-competition agreements, and other restrictive covenants. Mr. Toris regularly participates in emergent matters seeking to impose or defend against the imposition of restraints in the state courts of New Jersey.

He is also experienced with Sarbanes-Oxley issues including the defense of whistleblower claims under the Act. Mr. Toris also assists clients in the...

973-451-6347
Bianca M. Olivadoti Employment Litigation Attorney Jackson Lewis Berkeley Heights, NJ
Associate

Bianca M. Olivadoti is an Associate in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. She represents both small and large clients and focuses on all areas of employment litigation.

Ms. Olivadoti regularly litigates a wide-range of employment matters, including cases involving discrimination, harassment, retaliation, and whistleblowing as well as cases involving compliance with federal and state leave laws.  Ms. Olivadoti has experience representing employers at mediations and trials, including participation in a whistleblower trial before the...

908-795-5212
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