Have you ever had to conduct a workplace investigation? Chances are, many of you have, or you know someone who has. While the circumstances leading to them are rarely pleasant, the investigation itself, if done correctly, is a necessary and invaluable tool for employers. Unfortunately, some employers do not find out just how much, until it is too late. Over the next few weeks The Emplawyerologist will walk you through the five w’s — who, what when, where, why and how — of workplace investigations. (OK, technically it’s the 5 w’s and 1 h!) To shake things up a bit, we are not going to do this walk-through in the usual order, and we may even deal with more than one at the same time. Before we get into the minutiae though, let’s start with some big picture questions. When and why would you, the employer need to conduct a workplace investigation? Find out by joining me after the jump!
There are in fact many problems or situations that can prompt an employer to start a workplace investigation. Here are some of the more common occurrences that will trigger an investigation:
- Employment Discrimination Laws: These include federal laws discussed in prior posts, such as Title VII of the Civil Rights Act of 1964, the ADA, the Age Discrimination in Employment Act, (ADEA), GINA, and state counterparts to these laws, which require investigations when an employee alleges a violation of any of these laws. Harassment by one employee of another based on the other’s race, religion, gender, age, disability, sexual orientation or similar status is one example of employment discrimination allegations that should trigger an investigation.
- Health and Safety Laws, particularly federal Occupational Safety and Hazard Administration laws, and their state counterparts. Employers are legally required to investigate such problems and take all reasonable steps to prevent similar occurrences in the future. Laws under this category may also include any allegations of workplace violence. Employers have a legal obligation to investigate threats and, to the extent possible, prevent acts of violence in the workplace. One example of a safety complaint would be when one employee alleges that another is stalking him or her.
- Retaliation Claims: The above employment discrimination and health and safety laws also prohibit retaliation against any employee(s) that reports or objects to behavior that violates such laws, or who cooperates in an investigation of allegations that such discrimination or safety laws were violated.
- Whenever anyone in a position of any authority has information suggesting violation of any of the above types of laws, or any policy. Usually this information will point to harassment, discrimination, theft, violence, substance abuse, breach of trust or conflict of interest.
- When offsite or after-hours conduct related to work either affects or can affect an employee’s job performance or violate a law or company policy. The stalking example I gave above could apply here too. Another example might be if a manager learns that an employee is meeting after hours to attempt to organize a union and demotes the employee.
- Someone makes an anonymous complaint: Do not assume that the complaint is not valid, just because you do not know who is making the allegations.
- An employee’s morale, behavior or performance, suddenly/mysteriously declines. This could be evidence of harassment, retaliation, workplace violence or even other unethical behavior. The sooner the employer investigates and finds out, the more likely that the employer can prevent a situation from worsening, and avoid liability.
Similarly, when employees who report questionable behavior, but “don’t want to make any trouble” or for any other reason, an employee is suspected of misconduct (e.g. money seems to be missing, data seems to have been altered) these are all signs that something is amiss. Most of us know that when we ignore a problem it does not go away, especially in our increasingly litigious society!
Bottom line: Allegations of behaviors that are having or could have an adverse impact on an employee or the company should trigger an investigation.
Now that we have an idea of when to conduct an investigation, let’s start looking at why we should do it. Here would be what I would call the main reasons:
- To gather facts, which can lead to a conclusion, which in turn can lead to an appropriate employment decision.
- If used as a self-monitoring tool, an investigation ensures that managers, supervisors and employees are complying with employment laws, company policies and/or any other applicable guidelines.
- A proper investigation can minimize the risk of disciplining or terminating an employee for something s/he may not have done. Prior to a proper investigation, a situation may appear one way, whereas the investigation may reveal that in fact things are quite different than they originally appeared.
- Prompt and appropriate investigations based on factual conclusions can satisfy an otherwise hostile employee, and thereby fend off a lawsuit (I will probably expand on this in upcoming posts).
- A well-done investigation can demonstrate to staff that the employer is committed to objective and fair treatment of its employees, which will often lead to lower turnover and higher productivity.
- A prompt and thorough investigation, leading to an appropriate response provides the employer with an affirmative defense in the event of a lawsuit (more on this in next week’s post).
- A well-done investigation can uncover other, previously unknown problems, which, if allowed to continue could cause form the basis of a separate lawsuit or complaint with a government agency.
We now know what types of situations should trigger a workplace investigation, and we have also discussed some reasons. In other words, we have the “when” and the “why”. Next week, we’ll work on getting the “who”. (No I don’t mean the popular rock group from the 60’s and 70’s. I mean who exactly should conduct the investigation on behalf of the employer, and why that is important, so join me back here next week for the next installment!