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How to investigate cases
of employee misconduct

Rochester Business Journal
August 22, 1997
Several federal and state statutes, common law and company personnel policies impose on employers an obligation to investigate allegations of employee misconduct. Misconduct may include theft, illegal drug and alcohol use on the job, violence against co-workers, harassment and discrimination.

One public policy behind such laws appears to be an increasing concern regarding violence in the workplace. Reports indicate that in 1994 there were 1,071 workplace homicides in the United States, accounting for 16 percent of all workplace fatalities. In addition, illegal drug and alcohol use by employees on the job may result in injuries to co-workers or the general public.

Anti-discrimination laws prohibit, among other things, harassment based on an individual's race, color, religion, gender, national origin, age or disability. Unlawful conduct typically includes, among other things, epithets, slurs, negative stereotyping, threats, intimidation, and hostile or abusive acts.

Lawsuits that may arise out of an improperly conducted investigation include those that challenge reverse discrimination, or the extent of an employer's video surveillance or monitoring of employee e-mail, and even false- imprisonment claims involving individuals who have felt forcefully detained for an interview. It is not enough merely to investigate. If allegations of wrongdoing are substantiated during the investigation, employers also are required to take prompt action to eliminate misconduct. To quote a recent decision from the U.S. Court of Appeals, once employers know of unlawful harassment, they have "a duty to take reasonable steps to eliminate it.''

An employer that knows of harassment or other employee misconduct, but does nothing about the situation, may find that it is liable under a number of different legal theories. An employer that takes immediate action upon learning of employee misconduct, though, may shield itself from liability.

Determining what steps to follow during the course of an investigation, and when to conduct them, is not always easy. From a practical standpoint, the safest and easiest course for an employer is to treat all reports of employee misconduct seriously and to be consistent in application of any resulting disciplinary measures. Investigations should begin immediately upon receiving or hearing about a complaint. Quick action helps to avoid any escalation of a problem. Additionally, employees' memories tend to be more accurate when they are questioned soon after the occurrence of an incident.

When talking with the complainant, the accused and witnesses, gleaning all the information is important. At the outset of each interview, employers should explain to the person being interviewed that absolute confidentiality will be impossible, but that all efforts will be used to limit the scope and content of any information shared with others who need to know. To avoid liability for false-imprisonment claims, employers should always interview employees during regular business hours in familiar surroundings.

Employers should request specific details with respect to the place(s) of events, the time(s) of events, witnesses who were present, and the number of times the objectionable conduct occurred. If inflammatory speech is involved, employers should find out exactly what was said and whom, if anyone, the events were relayed to and when.

When interviewing the complaining party, the interviewer should always make sure at least one other person is present in the interview. Be sensitive to the fact that often the information to be communicated can be embarrassing, so keep the number of individuals present in an interview limited to the necessary parties. Take specific notes of what is said. If necessary, tape record the conversations with the witnesses' knowledge and have the recordings transcribed.

Additionally, be sure that the people chosen to interview the parties and witnesses do not intimidate the interviewees. If the atmosphere is intimidating or uncomfortable, an interviewee may not provide much information. For example, two females interviewing a male victim of sexual harassment are not likely to get fully descriptive details of events, particularly if either of them know the accused.

Where possible, avoid using names of the parties involved, particularly when interviewing witnesses. Similarly, instruct those whom are interviewed not to discuss the contents of the conversations they have had regarding the charges or people involved in the allegations. Explain that this request is designed to protect all of the parties involved, as well as to ensure the integrity of the investigation.

Tell the accused that, as an employer, the company has a legal obligation to investigate all claims of harassment or discrimination. Let the accused know, however, that all judgments will be reserved until the conclusion of the investigation. Moreover, at the same time counsel the accused employee that he or she may not retaliate against the person claiming harassment or discrimination. Explain that the law forbids anyone from engaging in such retaliation.

Caution also must be taken to limit potential exposure to claims brought by the employee being investigated. In a recent court decision, an employer terminated a female employee after its private investigator followed the employee to a bar and confirmed that she consumed several alcoholic drinks before driving the company van, in violation of company policy. The court held that the employer may have violated the employee's rights under the Americans with Disabilities Act when it gave her a choice of termination or attending a treatment program, because the employer improperly perceived the employee to be an alcoholic. Another problem with the employer's action was the fact that it had not given this same choice to male employees in similar circumstances.

Finally, conduct the investigation as quickly and efficiently as possible. The longer an investigation carries on, the greater the disruption to the workplace and the greater the likelihood that mistakes will occur that can be costly in terms of legal liability.

(Justin P. Doyle is a partner with Nixon, Hargrave, Devans & Doyle LLP. His partner, Maggie Clemens, assisted with this article.)

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