Q&A: Workplace Investigations

Q: What liability issues can arise when conducting employee investigations? Is there a way to ensure our investigation is not questioned?

A: Who the employee is and what you are investigating will determine the course of action that you should take.

If you are investigating a senior executive, you may want to hire an outside investigator to avoid the threat of intimidation in the workplace. Whoever is investigating the executive should be reporting to someone with as high of a rank within the company as is possible.

If you hire an outside investigator make sure they are impartial, have no predispositions and are trained well. Ensure that the investigator backs up their findings with evidence, and does not accept gossip as fact.

Consider the following liability issues and possible questions that may occur if an investigation will be taking place:

  • Find out whether the jurisdiction recognizes invasion of privacy claims; whether or not the employee has a reasonable expectation of privacy, and also whether privacy issues could arise in the investigation.
  • Avoid accusations of defamation by involving only those who need to know about the investigation.
  • Do not avoid conducting investigations and taking action once it becomes apparent that something is amiss; a prompt and thorough investigation will help you avoid accusations of negligent retention.
  • Find out whether or not your jurisdiction falls within the employment-at-will policy, or if due cause is required in order to terminate. Some jurisdictions may be somewhere in between, but find out where your company is on the spectrum to avoid charges of wrongful discharge.
  • If the employee is part of a collective bargaining agreement with a union, ensure that you take the required steps prior to conducting the investigation. It will likely be required that a member of the union be present during your investigation.

If disciplinary action should be the result of the investigation, ensure that it is consistent with company policies and history. Inconsistencies in discipline could result in claims of discrimination. It may be helpful to keep a record of disciplinary action to refer back to in case a similar situation occurs again in the future.

DISCLOSURE

The information provided herein is intended solely for the use of our clients. You may not display, reproduce, copy, modify, license, sell or disseminate in any manner any information included herein, without the express permission of the Publisher or Publishers of articles within.

The information provided is for informational purposes only and does not constitute legal advice. The information above contains only a summary of the applicable legal provisions and does not purport to cover every aspect of any particular law, regulation or requirement. Depending on the specific facts of any situation, there may be additional or different requirements. This is to be used only as a guide and not as a definitive description of your compliance obligations.