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WORKPLACE INVESTIGATIONS - BASIC ISSUES FOR EMPLOYERS

 

How Does the Need for an Investigation Arise?
Federal and State Laws Requiring Investigations
Privacy Issues in Workplace Investigations
Other Legal Issues Associated with Investigations
Methodology for Investigations
Putting It All Together

 

Sooner or later, every employer will face the need to investigate one or more of its employees. More and more employers are recognizing what an important tool a workplace investigation can be in discovering problems and preventing their reoccurence. This paper is a brief survey of the most important legal issues for employers to know about before undertaking any investigation of employees.

 

How Does the Need for an Investigation Arise?    Top of Page

 

Many different problems can lead an employer to start an investigation, and not every investigation necessarily fits the popular profile of interrogations, witnesses under harsh lights, and long, drawn-out detective work. Here are some common reasons why companies investigate employees or situations:

  1. attitude problems

  2. substance abuse

  3. discrimination complaints

  4. harassment complaints

  5. threats against others

  6. vandalism and other sabotage

  7. violations of work rules

  8. safety problems

  9. workplace theft

Naturally, each type of problem demands its own methods of investigation. However, certain common threads run through each type of investigation situation. The investigator must be knowledgeable about state and federal employment laws; must uphold the privacy rights of employees and others; must conduct a thorough investigation, but without letting it drag on too long; must be objective; and must keep his or her mind on the ultimate goal of any investigation, i.e., discovering the underlying reasons for the problem so that management can take corrective action. In essence, investigations are just a tool for management to use in analyzing the reasons for problems or gathering data to make management decisions.

 

Federal and State Laws Requiring Investigations    Top of Page

 

Many laws in the area of employee relations effectively require employers to undertake investigations in order to meet their obligations under the laws. The general duty of any employer who either knows or should know about a discrimination, harassment, threat, or safety problem faced by an employee is to take prompt and effective remedial action to put an end to the problem. In order to know what action to take, or to find out whether action is even necessary, the employer has to investigate the situation and ascertain the facts. Employers that fail to investigate such situations usually lose any claims or lawsuits brought by the employee in response to the problem.

 

Some of the more important laws and legal situations that require investigations by employers are:

  1. job discrimination laws - Civil Rights Act of 1964 (Title VII), the ADA, the ADEA, and their state equivalent, the Texas Commission on Human Rights Act

  2. health and safety laws - OSHA - employers must investigate problems and prevent future similar problems; prevention of workplace violence - employers have a duty to investigate threats and prevent acts of violence in the workplace to the extent possible

  3. drug-free workplace laws - Drug-Free Workplace Act of 1988; DOT drug testing regulations

  4. background and credit checks - in order to minimize liability for negligent hiring or negligent retention, employers must sometimes investigate employees' backgrounds - Fair Credit Reporting Act requirements apply

 

Privacy Issues in Workplace Investigations    Top of Page

 

Personnel Files
Searches at Work
Drug Testing
Defamation
Other Legal Issues Associated with Investigations

 

There are important privacy interests at stake in the workplace. Employers have fairly wide latitude in this area, but must be aware of important limitations that apply in various situations. In general, employees have the right to keep private facts about themselves and their families confidential, the right to not be accused wrongly, and the right to enjoy some degree of "personal space." Following is a discussion of some of the more significant ways in which these privacy interests come up in investigations.

 

Personnel Files    Return to Privacy Issues    Top of Page

 

In general, whatever is in an employee's personnel file should be accessed only by those who have a job-related need to know the information. The following general principles apply:

  1. All information relating to an employee's personal characteristics or family matters is private and confidential.

  2. Information relating to an employee should be released only on a need-to-know basis, or if a law requires the release of the information.

  3. All information requests concerning employees should go through a central information release person or office.

 

In order to reduce the chance of confidential information getting out to people who do not need to know it, most employment law attorneys recommend keeping different types of personnel information is different types of files, i.e., segregating the information. Some of the types of separate files an employer should consider are:

  1. general personnel file - job application, offer letter, performance evaluations, letters of commendation, and so on;

  2. medical file (including workers' compensation and FMLA documentation) - this is the only type of record that absolutely must be kept in a separate file apart from the regular personnel files - that is because the Americans with Disabilities Act requires that any medical records pertaining to employees be kept in separate confidential medical files;

  3. I-9 records - keep these in a separate I-9 file because it will make it easier to defend against a national origin or citizenship discrimination claim if you can show that such information is available only to those with a need to know (in other words, that those who might have made an adverse job decision were not aware of the person's national origin or citizenship status) - also, if your I-9 records are ever audited, it would be better if the auditor only saw I-9 records, instead of all kinds of other records mixed in that might give rise to reports to other governmental agencies;

  4. safety records - for the same reason you would want an INS auditor to see only I-9 records in an I-9 audit, you want an OSHA auditor to see only OSHA-related records in an OSHA audit - this safety record file might also contain documentation relating to an employee's participation or involvement in an OSHA claim or investigation - limiting access to such documentation would make it easier to keep the information from influencing possible adverse decisions against the employee that in turn could result in retaliation claims under OSHA;

  5. grievance and investigation records - maintain a separate file for these records because they often contain embarrassing, confidential, or extremely private information about employees that could give rise to a defamation or invasion of privacy lawsuit if such facts were known and discussed by others within the company - also, making it known that investigation records will not be divulged may make it easier to persuade reluctant witnesses to give frank and honest answers in an investigation.

The human resources department can develop a security access procedure for these various files. The company can keep an overview by cross-referencing in one file the relevant documents in another file. If a person who has access to one file wants to see another document in a separate file, he or she would have to have clearance under the file access procedure in order to do that.

 

Searches at Work    Return to Privacy Issues    Top of Page

 

In general, employees have a reasonable expectation of privacy in certain things or areas where they work, unless they have been given reasonable notice that no such expectation exists and that they may expect such areas to be viewed, inspected, or monitored in some way. For instance, employees who have never been told that their briefcases or purses might be subject to inspection would have a legitimate expectation of privacy in those things. A similar expectation would exist if the employee is allowed to have a work desk with a lockable drawer, or a personal locker in an employee break area - if the employee has never been told such areas might be subject to search, he or she would have a reasonable expectation that such areas would be private and not subject to search by the employer.

 

The key for an employer that wishes to have the flexibility to search a particular thing or area of the premises is to dispel any reasonable expectation of privacy on the part of employees by letting the employees know that certain things and certain areas will be subject to search at any time at the discretion of company management, with or without the presence of the affected employees. A good search policy will make all areas of the facility subject to search, as well as anything the employee brings onto the premises, including all work areas, equipment, furniture used by the employees, lockers, containers of any type brought by the employee onto the premises, and even personal vehicles left parked on company parking lots. For more details on these issues, see "Searches at Work - Legal Issues to Consider" in this book. A sample policy on searches may be found in "The A to Z of Personnel Policies" (part of this same book).

 

Drug Testing    Return to Privacy Issues    Top of Page

 

Drug tests are, of course, a form of investigation. At least in the private sector, Texas employers have the benefit of operating in a state in which drug testing is largely left up to an employer to do for itself. Employers may do drug testing under a wide variety of circumstances such as:

  1. pre-employment testing

  2. for-cause testing (this also includes "reasonable suspicion" testing)

  3. post-accident testing

  4. random testing

With any type of drug testing, however, the employer must keep the results absolutely confidential, and the documentation should be kept in the same confidential medical file that is used for ADA purposes. There are many legal issues to keep in mind, and it is essential to have a clear written policy letting employees know about the types of testing that may be done and what will happen if a drug test turns out positive. More information on this subject, including a sample policy and sample test consent form, is available in the book "The A to Z of Personnel Policies" (contained in this same binding).

 

Defamation    Return to Privacy Issues    Top of Page

 

Defamation consists of communicating false information about a person to a third party, either intentionally (with malice) or with reckless disregard for its falsity. A company can be liable to any of its employees about whom false information is released if it makes the information known itself or negligently allows the false information to be released. For that reason, employers must be extremely careful with the information that often results from investigations. This is why it is recommended to keep information relating to investigations in a separate investigations file. Under no circumstances should an employer allow an employee under investigation to be talked about in ways that could generate defamation liability for the company. Managers should be trained to never say or write anything about an employee that cannot be proven with reliable documentation or firsthand testimony from eyewitnesses.

 

Other Legal Issues Associated with Investigations    Top of Page

 

Retaliation Claims
False Imprisonment
Intentional Infliction of Emotional Distress
Assault and Battery
Malicious Prosecution
Invasion of Privacy

 

Retaliation Claims    Return to Other Legal Issues    Top of Page

 

Almost all laws relating to the workplace rights of employees include provisions prohibiting employers from retaliating in any way against employees who file claims or who assist in the filing or investigation of claims. Employers must take great care when investigating employees to ensure that the company does not take any unwarranted action against the employee that might appear to be retaliation for filing a complaint or claim. In addition, managers must be trained to know when to "back off" with an employee who is involved in a claim.

 

False Imprisonment    Return to Other Legal Issues    Top of Page

 

False imprisonment is a cause of action that can be brought against a company by an employee who feels that during part of an investigation, he or she was restrained or confined by the employer to the point where they felt "imprisoned." A company investigator must be very careful not to give the impression that the employee will be physically confined or restrained during an interview, for example. In a typical interview situation, the investigator will want to sit behind a desk or in a chair, facing the door that is the exit for the office. The employee being interviewed should sit with his or her back to the exit door and, if necessary, be reassured that they will not be kept from leaving. This arrangement also minimizes the risk to the investigator that the employee might become violent; if the employee feels that leaving is easy, he or she will probably do that rather than go out of their way to attack someone who is not in the exit path.

 

Intentional Infliction of Emotional Distress    Return to Other Legal Issues    Top of Page

 

This can be the basis for a lawsuit if the investigator conducts an interview in such a way that the employee feels unusually humiliated or threatened. Successful suits on the basis of intentional infliction of emotional distress are rare, but can be successful if the employer's action is seen as offensive to a reasonable person and would be viewed as outrageous by a reasonable society. There is generally no valid reason for an investigator or any other company official to shout at an employee, use slurs or other demeaning language, or cast the employee in a humiliating light, actions which have been the basis for successful lawsuits in this area of the law.

 

One sometimes hears about claims for "negligent infliction of emotional distress", but that is not a valid cause of action under Texas law. Nonetheless, employers must be careful to keep tense situations from escalating out of hand, since fine legal distinctions between "negligent" and "intentional" may be lost on juries in a close case.

 

Assault and Battery    Return to Other Legal Issues    Top of Page

 

Assault and/or battery can arise in an investigation if an employee charges that he or she either feared that an investigator was going to touch them in an offensive or harmful way (assault) or was actually touched in such a way (battery). This is why, for example, an employer may never physically force an employee to submit to a search. Rather, the employer should simply let the employee know that submitting to a search is required and that refusal to submit to the search can lead to immediate termination from employment (basically, this would be reminding the employee about the company's search policy).

 

Malicious Prosecution    Return to Other Legal Issues    Top of Page

 

Employers sometimes find themselves the subject of a malicious prosecution lawsuit if they attempt to bite off more than they can chew regarding criminal prosecution of an employee. If an employee is reported to the police, described as some sort of criminal, and the employer prods the authorities into arresting and prosecuting the employee, but for some reason there turns out to be no basis for criminal charges, the employee may turn around and sue the employer for maliciously prosecuting him or her. If an employee is suspected of wrongdoing, and under the circumstances it would be appropriate to get law enforcement involved, it would be best to simply report to the law enforcement authorities whatever the problem is and make various information available to them. If such information happens to include the names of employees who may have material knowledge of a crime, those employees cannot file a valid complaint that they were maliciously prosecuted - it is not malicious prosecution to simply furnish factual information to the police and let the chips fall where they may.

 

Invasion of Privacy    Return to Other Legal Issues    Top of Page

 

The common-law tort of invasion of privacy consists of the disclosure of private facts about a person. There are two main elements to invasion of privacy:

  1. the information contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person; and

  2. the information is of no legitimate concern to the third parties to whom the information was released.

Thus, since investigations often reveal highly intimate or embarrassing facts about people, especially in the case of sexual harassment, the information must be kept completely confidential by the employer and all who are involved in the investigation.

 

Methodology for Investigations    Top of Page

 

Steps Common to Any Investigation
Knowing When You Need an Investigation
Goals of an Investigation
Who Makes the Best Investigator?
Identify Witnesses and Documents
Organize a List of Questions
Interviewing Techniques

 

A company has many different ways of conducting investigations. Sometimes, as noted above, a company might utilize searches or drug tests to investigate a suspected problem. It might also try monitoring of telephone calls or of an employee's use of the company's computer system or Internet access, or else video surveillance of certain areas of the workplace. Finally, use of more traditional means such as interviews by investigators and background checks by government agencies and private companies may be in order. Telephone, audio, and video monitoring issues and background checks are discussed in more detail in this book in the articles dealing with employee privacy rights (see "Employee Privacy Rights And Identity Theft" and "Monitoring Company Computers And The Internet"). The rest of this paper will focus on the use of company investigators in conducting workplace investigations.

 

Steps Common to Any Investigation    Return to Methodology    Top of Page

 

As noted at the start of this paper, companies must be prepared to conduct a prompt and thorough investigation anytime an employee alleges wrongdoing by the company or by another employee. Being able to show that a prompt and thorough investigation was done may make the difference between winning and losing before the EEOC or a court.

 

A company must:

  1. recognize when an investigation is in order;

  2. decide what the investigation should establish, such as whether a particular person experienced harassment or whether a set of computer files has been deleted;

  3. select appropriate investigators;

  4. identify potential witnesses and documents for review;

  5. plan the investigation (best to have a written plan);

  6. organize a list of questions to be asked of witnesses;

  7. establish security for files and records; and

  8. be prepared to modify and update the plan as needed based on new information that might come in as the investigation progresses.

 

Knowing When You Need an Investigation    Return to Methodology    Top of Page

 

One of the most important skills in managing a workforce is knowing when an investigation is in order. Here are some situations that generally call for investigations:

  1. an employee files a formal complaint or grievance

  2. an employee reports a questionable situation, but says he or she does not want to make any trouble

  3. an employee's morale, behavior, or performance mysteriously declines

  4. an employee is suspected of misconduct

  5. any violation of a rule

 

Goals of an Investigation    Return to Methodology    Top of Page

 

The main goal of any investigation is to provide a sound, factual basis for decisions by management. The investigation should also produce reliable documentation that can be used to support management actions. Finally, an investigation of employees should reveal whether any misconduct has occurred, identify (or exonerate) specific employees who are suspected or guilty of misconduct, and put a stop to further wrongful actions.

 

Who Makes the Best Investigator?    Return to Methodology    Top of Page

 

Choosing the right investigator or investigation team is critically important. The investigator has to be someone who is credible, respected, regarded as fair and impartial, and knowledgeable about company policies and employment law issues. In addition, they need to have good interviewing skills, be well-organized and able to develop and follow a plan, and be able to communicate well with the various types of employees who will be interviewed. Finally, the company should consider how well the investigator will stand up in court if called upon to testify in a lawsuit, and whether the investigator can be safely trusted with all the confidential things that will come up during the process.

 

The best investigators are often from the human resources staff, but sometimes high-level managers may need to be brought in or associated with the investigation, if it appears that someone with more clout will get better cooperation from potential witnesses such as other management staff. In some situations, it may be necessary to bring in an outside investigator such as a consultant or attorney, if the situation requires the utmost in confidentiality. Finally, when technical issues are involved, such as the existence or deletion of computer files, experts in technical matters may need to take part.

 

Identify Witnesses and Documents    Return to Methodology    Top of Page

 

The company must move quickly to determine who knows what about which aspect of the situation under investigation. Keep in mind that waiting too long might mean that potential witnesses leave the company, become intimidated or otherwise influenced, forget important details, or go on vacation and are thus unavailable when needed. Knowing who the witnesses are is necessary for the scheduling of witnesses, and the order of interviews can make a big difference in the development of the facts. Always be ready to add to the witness list if other names come up during the investigation.

 

Equally important is identifying which documents will be needed. Memos, time cards, policies, personnel files, journals, and logs must be found and secured. Nothing is worse than discovering that certain documents are needed, then finding out that the documents have been shredded or otherwise purged as part of a routine procedure.

 

Organize a List of Questions    Return to Methodology    Top of Page

 

Any good investigator who is planning to interview witnesses will sit down beforehand and make a list of questions that must be answered for the type of investigation being done. Each situation demands different questions, since the elements of each problem are rarely the same. Generally, each witness will need to answer questions relating to what they saw, when they saw it, who else was there, why something happened (if known), what happened next, and so on. However, some witnesses will know a lot more than others, which is why the employer needs to be prepared to customize the questions asked of certain people. The investigator needs to have a talent for thinking of new questions on the spot to follow up on information as the witness gives it.

 

Interviewing Techniques    Return to Methodology    Top of Page

 

This step is, of course, what many people have in mind when they think of workplace investigations. Following is a list of things that successful investigators do in order to have the best chance of getting all the relevant information within a reasonable amount of time:

  1. start the interviews soon after the situation arises - delay can cause witnesses and documents to disappear

  2. hold individual interviews to uphold confidentiality and minimize peer pressure

  3. maintain objectivity

  4. take good notes, or record if appropriate (it is best to be up-front about the recording, even though Texas law does not require that)

  5. hold the interview in a private, quiet location

  6. never promise absolute confidentiality (because the company may have to release documents and names of witnesses due to legal requirements), but go ahead and tell witnesses that the company will do its utmost to protect employees' privacy unless forced by a court or agency order to do otherwise

  7. keep the interview on track

  8. do not interrupt witnesses while they are coming out with relevant information

  9. start out with general questions, then graduate to more closely-focused questions to pin witnesses down on the details

  10. repeat important questions, but with different wording, to see whether the witness sticks with the same answer

  11. avoid confrontational or accusatory questions

  12. pay attention to witnesses' body language

  13. use silence after a question as a technique to encourage reticent witnesses to start talking - people often feel a need to "fill in" periods of silence

  14. be ready with follow-up questions if needed

 

Putting It All Together    Top of Page

 

Since the main goals of an investigation are to produce a reliable set of facts for a decision and to reach a conclusion, the investigator will eventually have to tie all the various facts and documents together and show what it all means. Sometimes, the investigator only reports the facts to a higher manager, and other times, the investigator will be asked to go further and recommend what action to take. Whatever the mandate, however, the report should contain a description of the situation at issue, list the witnesses and documents used as evidence, summarize the information from each document and witness, make an assessment of the credibility of each piece of evidence and describe how it relates to the elements of the alleged problem, and make findings of fact on each element of the alleged offense or violation. If a recommendation is needed, it should follow the findings of fact.

 

All in all, if the investigator has done his or her job right, the company should have a solid basis for taking action and defending itself against claims of inaction and unfair treatment. Done properly, investigations will either keep an employer out of court, or else enable the employer to worry a little bit less about the outcome.

 

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