One of the most difficult issues for employers is disciplining employees.  An employer must consider many issues when it is deciding to discipline.  Having all the facts involved in the disciplinary matter is crucial yet employers often fail to conduct a thorough investigation before making a decision.  This article includes some questions for employers to consider when a discipline investigation is necessary.

When should an employer conduct an investigation?

 Employers should investigate allegations of improper employee conduct any time an employer, or any member of the employer’s personnel, obtains knowledge of the potential employee misconduct.  So long as the employer has a good faith belief that an action has occurred that may have violated a work rule, then an investigation may ensue.

An exception to the need for an investigation can apply when dealing with at-will employees.  Since those employees can be terminated for any lawful reason or even no reason at all, an investigation is not always necessary.  Even in these situations, however, an investigation can help defend against potential liability.

Employer investigations may be necessary for any of the following claims:

  • Violations of Employer work rules, policies, procedures, and collective bargaining agreements;
  • Violations to Title VII and Civil Rights Act Amendments involving an employee’s race, gender, religion, national origin, et. al.;
  • Improper use of sick leave by an employee;
  • Improper use of Family and Medical Leave Act leave;
  • State law violations;
  • Incidents of Workplace Harassment;
  • Incidents of Workplace Violence;
  • Allegations of Employee Drug/Alcohol Abuse;
  • Improper Off-Duty Conduct;
  • Other inappropriate acts.

Why should an employer investigate?

 While there are many reasons to conduct a workplace investigation, some of the most common include:

  • Avoid liability.
  • Impose discipline.
  • Improve employee performance.
  • Address workplace rumors.

How to prepare for an investigation?

 Prior to beginning an investigation, employers should have a plan for how to proceed.  This plan needs to be flexible.  An investigation must be adjusted based on the facts discovered by the investigator.  Documents related to the investigation should be compiled and reviewed.

The following are considerations and actions that should be taken by an employer prior to beginning the employee investigation:

  • Establish the Issue;
  • Appoint an Investigator or Form an Investigation Team;
  • Determine Where/When the Investigation Should Commence and Occur;
  • Establish a Preliminary Timeframe for Completion;
  • Review the Allegation(s);
  • Interview the Accuser;
  • Assess the Nature of the Alleged Misconduct;
  • Review Collective Bargaining Agreement or Policy Governing the Complaint Process;
  • Decide upon Individuals to Interview;
  • Appoint an Interviewer;
  • Gather any Relevant Documents/Records;
  • Establish how Documents/Records will be Maintained.

Who should conduct the investigation?

 In some cases, the answer to this question is obvious.  Often a human resource professional or supervisor will conduct the investigation.  Employers should be mindful of the unique circumstances of each situation.  Some of the issues to consider include:

  • Is the investigator involved or likely to be to be involved, in the facts surrounding the matter being investigated?
  • Does the investigator, or any member of the investigation team, have a relationship with any of the parties associated with the allegation?
  • Can the members of the investigation team remain impartial and uninfluenced by outside parties throughout the investigation?
  • Is the investigation team familiar with the position of the employee being investigated?
  • Is the investigation team familiar with all relevant collective bargaining agreements, personnel rules, or employer policies?
  • Have the members of the investigation team been sufficiently informed of the potential legal principles and procedures involved in the investigation?
  • Does the investigation team have prior experience conducting investigations?

In some cases, an employer should consider hiring an outside professional to conduct an investigation.  If an outside attorney conducts the investigation, the employer may benefit from the confidentiality of the attorney/client privilege.

What should the employer do with the accused during the investigation?

 One of the more difficult issues an employer must address is what should happen to the employee accused of wrongdoing while the investigation is proceeding.  When the alleged misconduct is egregious or potentially damaging to the employer, the employee can be placed on administrative leave, usually with pay.  Alternatively, the employee can be temporarily placed in a different position to avoid any problems.  Of course, the employer has the option to do nothing until the investigation is completed.  In every case, the employer should make it clear that retaliation against the accuser will result in discipline.

How should the investigation be documented?

There is no standard for documenting an investigation.  Generally, any form of documentation relied upon during an investigation should be understandable and clear so that another party can review and understand the documentation at a later date.  Once the investigation begins, it is helpful to take notes or memorialize discussions in a consistent manner.  In most cases, interviews should be recorded.  Some considerations include:

  • Keep a list of all individuals interviewed during the investigation;
  • Retain records of all dates and times of interviews;
  • Keep detailed notes of all interviews (tape recording interviews may be helpful);
  • Maintain any relevant photographs helpful to the investigation;
  • Retain and review all documentation obtained during the investigation;
  • Maintain a separate investigation file, including the accused’s personnel records;
  • Keep copies of the work rules and policies involved in the investigation;
  • Any other records required by law, employer policy, or collective bargaining agreement.

At the conclusion of the investigation, the employer will need decide how to document its findings.  In some cases, a formal investigation report will be necessary.  This report will help document the steps taken by the employer and could be a useful tool in response to a claim of wrongful discharge, discrimination or a lawsuit by a member of the public.  In other situations, a short conclusion or even no report at all will be sufficient.

Workplace investigations can be very complicated and time consuming.  When allegations of misconduct are made against an employee, nothing can replace a thorough, well documented investigation to help the employer avoid liability and reach the correct conclusion.

The attorneys at Fishel Downey regularly advise clients with workplace investigations and, in some cases, conduct the investigation.  We also provide training to human resource professionals and supervisors on conducting the investigations.  If you need assistance with workplace investigations, please contact us.