Investigating allegations of workplace misconduct have become a common occurrence in todays corporate world. The type of misconduct can include embezzlement, sexual harassment, discrimination, misuse of corporate computer system, employee theft, workplace violence, drug and alcohol abuse, and many other forms of both criminal and non-criminal behavior. For the corporation, unchecked and unenforced workplace misconduct can result in unlimitless exposure to civil liability. Similarly, corporations need to understand that the people involved in misconduct can vary in scope. Corporate officers, board of directors, shareholders, managers, and hourly employees are all just as capable of committing a wrongful act, and to prove this, one need only look at all the corporate scandals that have plagued businesses throughout the beginning of the 21st Century.
Roy A. Ginsburg wrote an article for Business Law Today, which outlines some excellent issues and guidelines that all businesses should consider when investigating workplace misconduct. As a lawyer, I would advise my clients that establishing some sort of policy and procedure prior to opening their business is the best course of conduct. Subsequent review and amending of those policies and procedures should occur at a minimum every 90 days, but not longer than 1 year. An attorney will be able to assist business owners in establishing some sort of base guidelines from which to operate.
The most important aspect I took away from reading Mr. Ginsburg’s article is a list of general guidelines that are intended to facilitate the investigative process, regardless of the subject matter. Having a general knowledge of these guidelines, and consulting with an attorney to work on establishing corporate policies and procedures, are the best way to minimize exposure from a civil liability context.
The general guidelines are as follows:
- Define clearly the investigator’s role. The company should define in advance what the expectations of the investigator will be. Is the capacity of the investigator to determine truth? credibility? fact gathering? recommendation of corporate response?
- Retain the right investigator. The investigator needs to have the right kind of skill sets to do the job. He/She must be able to (1) be a good communicator; (2) have the proper temperment to conduct interviews; and (3) have a fundamental knowledge base relating to the subject matter of the investigation.
- Act promptly. It is imperative that companies initiate corporate investigations in a timely and reasonable manner.
- Conduct a comprehensive and thorough investigation. A company does not want critical or outcome-determinative facts coming out after the investigative process has ceased.
- Do not promise complete confidentiality. The company and investigator should reassure the accused, accuser, and any third-party witnesses that the matter will be handled with discretion, sensitivity, and confidence, but they may need to divulge certain facts as the investigation proceeds, or discuss frankly the relevant issues when determining the corporate response. Don’t over-promise confidentiality.
- Be flexible throughout the investigation. Problems and issues may arise over the course of an investigation which will require the company to refocus, adapt, or even terminate the proceedings. Be prepared to anticipate this.
- Get assistance when needed. Depending upon the nature of the interviewee, an investigator may need help from in-house counsel, corporate security personnel, and others – get it. If an employee has a propensity to be violent, and is accused of workplace violence, there is absolutely no need to be in a closed-door room with them, and have nobody around to assist the investigator.
- Respond proportionately. Craft the corporate response to the situation in such a manner as to reflect what the outcome of the investigation was. If the investigator determined that sexual harassment may have occured, but it is not conclusive, then the company should consider retraining its employees through a series of seminars on workplace sexual harassment.
- Respond consistently. To avoid claims of differential treatment, make sure the compay understands how parallel investigations were concluded in the past, and implement a resolution similar in substance.
- Communicate the outcome when possible. Don’t leave those people who were subjected to the investigation out in the dark about the conclusion of the matter. If the outcome of the investigation can be shared with the complainant or others within the bounds of confidentiality and privacy, disclose what you can. To the extent that the outcome cannot be shared, explain the principles involved precluding disclosure, and explain that the company conducted and completed a thorough investigation and responded consistently with company policies and practices.
To read Mr. Ginsburg’s article in its entirety, please click here: Conducting Investigations of Workplace Misconduct