Labor and Employment Law blog

Issues Employers Should Consider When Conducting a Workplace Investigation

Once the need for a workplace investigation has been identified and the investigator has been selected, the next step the employer should take is to prepare an Investigation Plan. When developing such a plan, here are a few issues that employers should be aware of and consider including in their plan.

1. When interviewing the accused, give the accused an opportunity for rebuttal of the allegations presented. The investigator should also ask the accused for any reasons they believe the complaining party would have to lie. Advise him or her of the possibility of discipline, but also give assurance that no conclusions will be reached until the investigation has been completed.
2. If the accused is represented by a union, be sure to follow the union contract and any special rules that may apply.
3. When interviewing the witnesses, give some thought as to the location of the interviews and the timing. Review witness personnel files and other relevant documentation (i.e. emails, production records, reports, timesheets, expens reimbursement records, telephone records, etc.), and beware of possible underlying motives and biases.
4. Establish a secure system of organizing and maintaining files and records.
5. When determining appropriate remedial action, ask yourself these questions. Do you have the whole story? Do the facts stand up? Was the investigation thorough? Was there a violation of the employer's policy? Was the conduct criminal? Does the punishment fit the crime?
6. When the investigation is completed, communicate the results to the appropriate persons. This should include follow-up with the victim, reporting any criminal conduct to the authorities, and following-up with witnesses, if appropriate.

This blog has written some other posts regarding workplace investigations that you may wish to read. Here are the titles and links.

Workplace Investigations - Who Should Conduct The Investigation?

Factors Used To Evaluate The Competency And Effectiveness Of A Workplace Investigation

Conducting A Proper Workplace Investigation - 13 Factors To Consider

What Employers Should Know About The Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA) provides employees certain rights regarding credit checks and general investigative background checks obtained from third parties. The FCRA also governs the disclosure of "consumer reports," which includes information provided by consumer reporting agencies that address credit, character, general reputation, personal characteristics or mode of living. The Federal Trade Commission has an excellent article that explains what specifically consumer reports are and what employers should know about them. To view the article, click here.

Although employers often fail to recognize that the FCRA applies in the employment context, criminal background investigation reports and credit histories generally fall within the FCRA's scope.

The FCRA requires employers to provide employees certain notices and disclosures before requesting a report, before taking any adverse action based on the report, and after taking adverse action based on the report. There are, however, limited exceptions from these notice and disclosure requirements where the report concerns suspected employee misconduct, or compliance with federal, state, or local laws or regulations or preexisting written employer policies.

Yale University has a webpage that discusses the specific rights outlined in the Fair Credit Reporting Act. Although it has been published for the employee, it is very informative from the employers' perspective as well, and worth a read. To view the write-up, clear here.

If the report falls within one of these exceptions, the statute requires only limited employee notice, but still restricts access to the report to individuals or organizations prescribed by statute. 

Workplace Investigations - Who Should Conduct The Investigation?

In determining who should conduct a workplace investigation, the nature of the conduct alleged, the persons accused, and persons available with the necessary level of investigation training and experience must be considered. The investigator must be fair and impartial with respect to the issues and the parties. Common choices in the selection of an investigator include human resources personnel, attorneys, outside consultants, and law enforcement personnel. Here are some advantages and disadvantages of each choice.

Human Resources: HR personnel will likely be familiar with the employees involved and have extensive knowledge of the employer's policies, practices and culture. However the openness of communication could be impeded and cause a fear of retaliation.

Attorneys: Attorneys will likely be aware of legal boundaries, but may or may not be a good investigator or interviewer. They also may be unfamiliar with the employer's policies, practices and culture. An attorney may be more useful as an overseer of the entire investigative process.

Outside Consultant: An outside consultant may appear more objective and neutral than insiders, particularly if upper management is accused. There is also less risk of a confidentiality breach. However, as with attorneys, an outside consultant may not be familiar with the employer's policies, practices, and culture.

Law Enforcement Personnel: A law enforcement personnel must provide Miranda warnings and other constitutional protections to the accused. Also, the employer looses a great deal of investigative control when using law enforcement personnel. Lack of familiarity or interest in the organization's policies, practices, and culture could be considered a negative. Plus, due to a reasonable doubt  standard of proof, there may be a need to impose higher investigative standards than necessary.

Whoever is selected to investigate, it should be someone who:

• understands the purpose of the investigation,
• appreciates the legal and practical issues,
• knows the employer's practices, policies, and culture,
• has good interviewing skills,
• is credible, respected and impartial,
• would be effective as a witness,
• is able to maintain confidentiality,
• pays attention to detail, resolves inconsistencies, addresses all open issues and prepares good documentation, and
• can weigh competing and conflicting information, make a recommendation to the decision make and support it.

And finally, a good investigator is someone who can execute the plan but is flexible enough to adapt to the twists and turns that arise during workplace investigations.

Factors Used To Evaluate The Competency And Effectiveness Of A Workplace Investigation

Juries and others, with the benefit of hindsight, look at several factors in evaluating the adequacy of a workplace investigation. Often times, good plaintiff's lawyers will put the employer's investigation on trial in order to divert attention from their client's conduct. The report card of a good workplace investigation contains passing grades in the following areas:

• evidence of good planning,
• devotion of sufficient skills and resources,
• promptness (but with no rush to judgement),
• thoroughness (all material witnesses were interviewed and documents received),
• fairness and impartiality,
• accuracy,
• minimal intrusion,
• maximum confidentiality, and
• adequate documentation.

Perhaps the most frequent mistake committed by employers faced with a need to conduct a workplace investigation is procrastination. Reasons for such delays include illness or absence of those involved, vacations, holidays, pressing work matters or the hope that if the information or allegations are ignored, they will somehow go away. Employers are urged not to fall victim to any such beliefs.

Conducting a prompt workplace investigation has a number of benefits to the employer. First, it will show that you took the matter seriously. Second, the trail will be fresh and memories will not have faded. Finally, striking while the iron is hot will not give the accused a chance to cover his or her tracks. Bottom line, you will have a better chance of getting straight answers and admissions.

[Note: This article was taken from What Every Business Manager and HR Professional Should Know About Federal Labor and Employment Laws.]

Frequently Asked Questions By Employers About Military Service Personnel Rights

In 1994, legislation called The Uniformed Services Employment and Reemployment Act was enacted to strengthen and expand the reemployment rights of uniformed service members. The legislation consitituted a major overhaul of a prior statute, which it replaced, and codified the nearly 50 years of case law surrounding the earlier statute. This law was further amended in 2005.

Here are some questions (with answers) employers frequently ask regarding military service personnel rights.

Q. Can an employer request that accrued vacation time be used for military service? A. No. The law does not permit an employer to require that an employee use vacation time for military service.

Q. What about health benefits for military service members? A. The new law provides for COBRA equivalent health benefit continuation for those who are away for military service. This is true, even if the employer would not otherwise be covered by COBRA - that is, an employer with less than 20 employees. The military service member may elect to continue the health plan coverage for up to 18 months after the absence begins or for the period of service, whichever period is shorter.

Q. Who is covered by the law's anti-discrimination provision? A. The law's anti-discrimination coverage (e.g. hiring, promotion, reemployment, termination, and benefits) applies to past service members, current members, and persons who apply to be a member of any of the branches of the uniformed services.

Q. Who enforces the law? A. The Department of Labor's Veterans' Employment and Training Service (VETS) investigates complaints and attempts to resolve them. Cases that remain unresolved can be referred to the Attorney General for court action, and individuals have the right to file suit.

Q. Does the law recognize any conditions which would lessen an individual's right to reemployment? A. Yes. The law will excuse reemployment where the circumstances have changed so much that reemployment of the service member would be impossible or unreasonable (e.g. a reduction in force that would have included the person seeking reemployment). Employers also are excused from makeing efforts to qualify returning service members or from accommodating individuals with service-connected disabilites when doing so would be of such difficulty or expense as to cause "undue harship" as that term is defined in the American with Disabilities Act.

To learn more about what employers need to consider regarding military service personnel rights, you should obtain a copy of an excellent employers guide to federal labor and employment laws that is featured on this blog.

The Importance Of Having An Employee Handbook And Well Written Company Policies

[The following article was written by Louis P. DiLorenzo, Esquire]

I have strongly suggested, many times, that employers should have a published employee handbook that includes complete and well written company policies - for several reasons. One reason is, in non-union settings, employers may write firm and fair employment policies that not only explain the expectations for the workforce, but can help avoid liability for employer actions. A recent case in New York County Supreme Court provides a good example.

In Scott v. Beth Israel Medical Center, a doctor-employee had a lawsuit against the hospital for severance. He regularly communicated with his attorneys about the lawsuit via the employer's email system. The employer had an email policy in place which stated that computer and other electronic systems were the employer's, and the employee had no personal privacy right in the material on the system. The employer also reserved the right to "access and disclose the material at any time, without notice."

The Court relied on a three part test in determining that the attorney-client privilege was waived:

1. The employer has a policy which prohibits personal use,
2. The employer can monitor the employee's computer or email, and
3. The employer notified the employee, or the employee was aware of the use and monitoring policy.

Here, the court found that since newly hired doctors under the employer's supervision must acknowledge the handbook in writing, he had sufficient knowledge.

Lessons learned:

• Have an employee handbook.
• Make sure company policies are accurate and up-to-date, and properly provide and protect management rights.
• Employees, once litigation commences, regularly claim they have never received or seen a handbook or policies. Make sure you can prove employees have received an employee handbook, the company policies it contains and any revisions. A written acknowledgment is best.

[Mr. DiLorenzo is Co-Chair of the Labor and Employment Law Department of Bond, Schoeneck & King, PLLC and maintains offices in Syracuse, NY, and New York City.]

At-Will Employment - 5 Ways For Employers To "Cover Their Bases"

[The following article is written by guest author, Kelly Kilpatrick]

Although the concept of "at-will employment" is intended to protect both employer and employee regarding non-contract employment, chances are that at some point in time you, as an employer, will have to explain yourself after terminating an employee. The importance of record keeping cannot be understated; well-kept records can save you a lot of time and headaches if you maintain your files regularly.

There are a number of issues an employer should be keeping track of to ensure that it is covered, in the event a former employee initiates a wrongful termination claim. Here are five ways in which you can help "cover your bases."

1. Maintain complete employee files. This may sound like common sense, but each employee should have a file documenting all aspects of his or her employment - from new hire paperwork to performance reviews. This documentation is essential, especially if a former employee files for unemployment or files a employment grievance against you.
2. Keep manager and supervisor logs. Have all of your managers and supervisors log and document all activities throughout the work day. Doing this not only helps when things go wrong, but is an excellent communication tool for your business - especially if you are unable to meet with everyone on a daily basis.
3. Write up employees for infractions. Many companies have a "three stikes, you're out" policy. Whether this is true of your business, do your best to cite all infractions and place these write ups in the employee's file. Follow through with your policies and procedures, but always secure the proper documentation.
4. Support your claims. Here are some examples. If you are writing up an employee for tardiness, be sure to record the proper supporting evidence and attach it to the write up. If a client or customer has filed a complaint, place a copy of the complaint in the employee's file along with your own documentation. And remember, the more information you can provide, the better.
5. Remain professional. Never discuss an employee's termination with anyone besides those that need to be involved. If you are considering termination and building a case for doing so, keep it to yourself. Remain calm and professional. Keep impeccable records and documentation.

Knowing that all of your bases are covered will allow you to rest easier when it comes to at-will employment issues.

[Kelley Kilpatrick writes on a number of employment issues, including the subject of best criminal justice programs. She invites your feedback and can contact her at kellykilpatrick@gmail.com.]

Workplace Privacy - Five Tips For Employers

Employees may have a common law right to privacy which gives the employee the right to be free from an "unreasonable intrusion" upon their privacy. The availability of this right varies from state to state. For example, a common law invasion of privacy cause of action has been recognized by the courts in Connecticut, but not in New York.

When considering whether an employee has proven a violation of a common law right to privacy, a court will generally ask three questions:

• Did the employee have a reasonable expectation of privacy?
• If so, did the employer have a legitimate business reason for monitoring, accessing, or disclosing?
• Were the employer's actions reasonable under the circumstances?

Employee consent to employer monitoring is a complete defense to common law right to privacy claims. An employee who gives consent no longer has a reasonable expectation of privacy. Also, an employer policy or conduct can destroy any reasonable expection of privacy as well. For example, a policy permitting the employer to search of lockers, desks, packages, etc., under defined circumstances, would destroy any such expectation.

Employers should take appropriate measures to ensure they are appropriately respecting employees' privacy rights, while preserving their own rights to monitor employee activies. Regarding workplace privacy, here are five tips regarding steps employers should take.

1. Identify risks that may need to be reduced through monitoring or appropriate employer policies.
2. Create, destribute, and implement relevant policies, and detail reasons for policy before it's implemented.
3. Obtain employee consent for monitoring, accessing, and disclosing records.
4. Only disclose private information where necessary and only on a "need to know" basis.
5. Consult with employment counsel regarding applicable state laws.

Use Of GPS Tracking Devices In The Workplace - Some Things Employers Should Consider

[Excerpt from article written by Louis P. DiLorenzo, Esquire]

The use of GPS tracking devices in company vehicles and cellular telephones is becoming increasingly prevalent. GPS devices can record and display location and movement to establish a history which an employer may access at any time. Currently there are no federal or state statutes expressly prohibiting the use of GPS devices in an employment situation, but state privacy statutes and common law tort principles may be sources of legal action by employees.

Employers should be wary regarding various state privacy protections. Most states have laws restricting employers from taking action against employees because of their private off-duty pursuits. New York State, for example, has one of the most stringent laws concerning protection of legal off-duty activities, making it unlawful for employers to discriminate against individuals regarding terms or conditions of employment because of political activities, use of legal consumable products, recreational activities, and more.

It may be more prudent for employers to limit GPS surveillance to on-duty activities and to inform employees that they may be monitored, since the key to the issue of privacy is typically whether an employee had a "resonable expectation" of privacy. Some things employers should consider:

1. Monitoring could be limited to legitimate business reasons to increase productivity, aid in quick response, and routing organization and promptness.
2. Employees should be able to shut down monitors during meal breaks and other off-the-clock time.
3. Any information provided by tracking devices should be limited in scope to those on a need-to-know basis.

In addition, employers should provide a written policy summarizing these points and others, such as reserving the right to monitor the location of employees during working hours for business purposes, the right to discipline employees based on location monitoring, and the method and length of storage and safekeeping of datat collected.

To read this complete article, click here.

[Mr. DiLorenzo is Co-Chair of the Labor and Employment Law Department of Bond, Schoeneck & King, PLLC and maintains offices in Syracuse, NY, and New York City.]

Establishing Tougher Workplace Policies And Penalties - How Employers Should Proceed

[Special Article by Louis P. DiLorenzo, Esquire]

Recently, I hosted a webinar for a national business organization concerning discipline issues. The question below was posed to me by one of the listeners, and I thought the answer might be useful to you, as an employer, if you are faced with a similar situation.

Question:

If, in the past, a company has imposed lenient penalties for certain offenses (e.g. sexual harassment), and now wishes to toughen those policies and penalties, how does it change this past discipline practice going forward?

Answer:

The best way to change this type of situation is to communicate with the employees the employer's new expectations. The communication can be done in several ways.

• by a written communication explaining both the change in policy/penalty and the reasons for it,
• through a workplace posting explaining the change and reasons,
• through negotiating the change with a union if a collective bargaining relationship is involved,
• through meetings with the employees, or
• all of the above.

The prupose is to forewarn the employees, and the union if necessary, of the probable consequenses of their actions if they engage in such conduct. By republishing the rule and the intended penalty, it destroys the previous practice and any expectations of how the matter is to be treated prospectively.

(Mr DiLorenzo, a labor law attorney for over 30 years, is Co-Chair of the Labor and Employment Law Department at Bond, Schoeneck & King, PLLC, and co-author of the HR employment law guide, What Every Business Manager and HR Professional Should Know About Federal Labor And Employment Laws.)