In 2025, employers will continue to navigate evolving trends in the legal landscape governing employment claims, which will be relevant to how they conduct workplace investigations and issues that arise in the course of such investigations. This article outlines a few key trends and provides guidance to human resource professionals seeking to align company policies to relevant developments in the law.

Increase in Retaliation Claims

In recent years, there has been a significant increase in claims of retaliation by employees (see Karla Gilbride, EEOC, Office of General Counsel Fiscal Year 2024 Annual Report). This trend is attributable to a number of factors, including the expanded protections provided to employees on a federal, state and local basis and the increased focus on retaliation in the workplace. Importantly, a claimant bringing a retaliation charge generally does not have to prove the underlying reported violation, and courts have recognised that in comparison with other workplace discrimination claims, “the requirements for a retaliation claim are in fact considerably less stringent” (see Hubbell v FedEx SmartPost, Inc., 933 F.3d 558, 569 (6th Cir. 2019) citing Burlington N. Santa Fe Ry. Co. v White, 548 US 53, 59-69 (2006)).

Anti-retaliation protections provided to employees are generally governed by statute and are typically addressed in company handbooks. Retaliation generally occurs when an employer takes an adverse employment action against an employee for engaging in a protected activity, which may include the filing of a complaint concerning allegedly unlawful conduct or participating in an investigation into such an activity. In 2022, New York State significantly expanded the scope of its statutory whistle-blower protections by, among other things, broadening the range of protected activity to cover activity that the employee “reasonably believed” constituted a violation of law, rule or regulation (rather than proof of an actual violation), and providing protections for not only employees but also independent contractors (see N.Y. Lab. Law § 740). In 2024, the US Supreme Court articulated the standard or proof required by a whistle-blower alleging a violation of the Sarbanes-Oxley Act (SOX), a federal statute that bars publicly traded companies from retaliating against employees who report violations of federal securities laws (see Murray v UBS Sec., LLC, 601 US 23, 32 (2024)). In that decision, the Supreme Court held that a plaintiff needs to prove only that “the protected activity was a contributing factor” to an adverse employment action and need not prove that the employer acted with “retaliatory intent” (Id.).

To mitigate against any potential claims of retaliation, an employer can proceed as follows. 

• Develop a written anti-retaliation policy that provides that retaliation is prohibited, and violations may lead to disciplinary action. The policy should also require employees to report concerns of retaliation. 
• Prior to taking any potentially negative employment decision, ensure that the employee is being treated in the same manner that they would have been absent the filing of the complaint and/or participation in the investigation. To that end, ensure that they are treating employees consistently prior to making an employment decision that may negatively affect an employee. To defend against claims of retaliation, it is important that any adverse employment actions, including the reasons for those actions, are documented. 
• Advise the complainant and interviewees of the non-retaliation policy, and encourage individuals to share any concerns with the employer. 
• Advise the accused of the non-retaliation policy and assess whether it is necessary to implement measures to ensure adverse employment actions are only undertaken with appropriate consultation.

Confidentiality

As an initial matter, employers generally should not guarantee complete confidentiality to complainants or witnesses in connection with the employer’s dissemination of information relating to an internal investigation. Among other things, an employer may need to disclose certain information in order to conduct a thorough investigation. Employers may also be required to report certain information to regulators or to provide other external disclosures at a later date.

Employee relations professionals should also be careful when directing employees to keep non-privileged workplace investigations confidential. In 2023, the National Labor Relations Board (NLRB), in Stericycle, Inc. and Teamsters Local, determined that investigative confidentiality instructions would be scrutinised on a case-by-case basis, and that a “generalized concern with protecting the integrity of [an] investigation”, standing alone, was an insufficient reason to justify overriding an employee’s statutory right under the National Labor Relations Act (NRLA) to discuss their working conditions (see 372 N.L.R.B. No 113 (August 2, 2023)). (The NLRA applies only to non-supervisory employees). The NLRB has stated that confidentiality may be appropriate in certain circumstances, such as to protect witnesses or to prevent the destruction of evidence or the fabrication of testimony. In addition, the US Equal Employment Opportunity Commission (EEOC) has stated that an employer should not prohibit an employee from discussing alleged discrimination with others. Similarly, some states have laws that prohibit employers from restricting employees from discussing working conditions with others (see – eg, Cal. Labor Code § 232.5).

The Securities Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) have brought enforcement actions against companies that allegedly impeded potential whistle-blowing to those agencies. The existence of confidentiality or other employee agreements without carve-outs for whistle-blowing that the agencies deemed adequate, has led to enforcement actions even absent evidence that the agreements actually prevented whistle-blowers from coming forward. In 2024, the SEC brought 11 actions under Rule 21F-17, the Commission’s whistle-blower protection rule, which prevents employers from “tak[ing] any action to impede an individual from communicating directly with the [SEC] staff about a possible securities law violation” (see SEC Office of the Whistleblower Annual Report to Congress for Fiscal Year 2024; 17 C.F.R. § 240.21F-17). The SEC penalised companies for, among other things, using agreements that the Commission identified as having the potential to impede reporting, including:

• settlement agreements that required underlying facts to remain confidential but permitted individuals to respond to SEC inquiries (SEC Release No 100908 (September 4, 2024));
• non-disclosure agreements that prohibited candidates for employment from voluntarily disclosing information about a potential employer to government agencies (SEC Release No 101200 (September 26, 2024)); and
• employment agreements that required employees to waive their right to recover a monetary award in any investigation by a government agency (SEC Press Release 2024-118 (September 9, 2024)).

(See SEC, SEC Office of the Whistleblower Annual Report to Congress for Fiscal Year 2024).

For the first time in its history, the CFTC in 2024 brought a charge against a company for “using agreements intended to prevent whistleblowers from communicating with the CFTC” (see CFTC, Whistleblower Program & Customer Education Initiatives 2024 Annual Report, at 15). The CFTC ordered a financial services company to pay USD55 million for, among other things, impeding whistle-blower communication with the agency through broad non-disclosure provisions in the company’s employment and separation agreements (see Trafigura Trading LLC, CFTC Docket No 24-08 (June 17, 2024)). In its release, the CFTC specifically noted the failure to include an express carve-out permitting communications with government agencies.

Accordingly, in instructing employees on their confidentiality obligations, employers should be careful not to suggest that employees are prohibited from reporting any potential violation of the law to government agencies or otherwise exercising any statutory right. 

Throughout any privileged investigation, companies should ensure that employees are aware of the confidentiality of the communications through proper Upjohn warnings given to employees prior to all interviews. Employees should understand that any counsel present represents the company (and not the employee individually), that the communications are privileged and confidential, and that the company may unilaterally choose to waive privilege at a later time (without employee consent). Maintaining documentation that these warnings were given will safeguard against privilege disputes down the line.   

Technology

Employers are increasingly using technology (including AI) in connection with workplace investigations. For example, employers may conduct searches of all prompts entered by employees into AI assistants or of AI-generated outputs. Companies may also use technology to track where employees are and what they are working on. As technology takes on an increasing role in workplace investigations, employers should ensure that applicable policies are in place that advise employees that the company may monitor activity on company devices and systems for legitimate business purposes.

Any monitoring of personal data should be done in accordance with the employer’s written policies and applicable law. AI systems may require access to sensitive employee data in order to run effectively, and employers should develop clear policies to maintain compliance with all applicable privacy laws. This is of particular import to cross-border investigations, as some countries have statutes that prohibit the transfer of certain information outside of the country. Before implementing new AI or other technology uses, policies should be implemented detailing how employee data may be collected, used and stored, and should include procedures for regularly auditing AI programs to mitigate the introduction of bias into automated algorithms.

As smartphones with built-in recording devices have become ubiquitous, employees may record workplace conversations, including conversations with employee resource professionals, with greater ease. In certain jurisdictions in the United States, an individual may not surreptitiously record a meeting without the consent of all parties, while other jurisdictions only require the consent of one party. Accordingly, employee relations professionals should work with legal counsel to establish policies that address recordings by employees, and adhere to those policies during the course of the investigation. Notably, under the NLRB’s 2023 Stericycle decision, a blanket no-recording policy that prohibits any recording may be found to violate non-supervisory employee rights under the NLRA. To the extent an employee requests to record an interview and that request is denied, the reasons for denying the request should be properly considered against any rights of the employee under relevant law. The denial of requests to record should be properly documented with appropriate justification. 

In 2022, the SEC alleged that an executive improperly interfered with potential whistle-blowing by an employee by, among other things, restricting that employee’s access to certain company systems and monitoring his use of other systems after he threatened to disclose a potential securities law violation (see In the Matter of David Hansen, SEC Release No 94703 (April 12, 2022)). Accordingly, employers should carefully consider whether or not to restrict a whistle-blower’s access to information prior to doing so. To the extent such a decision is made, the legitimate business purpose for doing so should be documented. 

Conclusion

It is expected that the legal landscape relating to workplace investigations will continue to evolve under the second administration under President Trump, and a shift toward more employer-friendly policies is expected at the federal level. Employers should continue to monitor developments in the law accordingly. 

In conducting an investigation, employers should ensure that there are robust policies in place to guide investigations and that these policies are followed as investigations unfold. Doing so will protect against a complainant further alleging that the company is not following its own policies in conducting the investigation, and safeguard against claims of retaliation. (Employers should also expect that, if the matter proceeds to litigation, those policies will be requested as part of the discovery process.) Additionally, employers should do the following.

• Implement robust policies to track developments in technology and follow these policies throughout any investigation. Regularly audit policies to make sure they are up to date with expanding use of technology and with evolving federal, state and local law. 
• Ensure there is a framework in place for internal reporting and that the procedure for reporting is communicated to employees.   
• Inform complainants and witnesses of the company’s anti-retaliation policy, and require that employees receive anti-retaliation training. Continue monitoring federal, state and local law for developments in what constitutes protected activity and update anti-retaliation policies accordingly.
• Do not make overbroad promises of confidentiality to the complainant or any other witness.
• Establish a routine procedure for documenting investigations from the outset, including maintaining a record of witness statements, data reviewed and important dates. Procedures for documentation are essential because they both shield employers from claims of a sham investigation and may impact the trajectory of the investigation as it unfolds.
• Before conducting an investigation, assess whether privilege applies and if so, to what aspect of the investigation. To the extent a privileged interview is being conducted, give employees being interviewed an Upjohn warning and maintain a written record that the warning was given.
• Follow up with the complainant. Many reports to government agencies by an employee occur only when a complainant does not believe their prior internal report was adequately addressed by their employer. Though a detailed summary of the investigation is unnecessary, relaying the outcome of the investigatory process may reduce the likelihood of an external report.