Internal Investigations: Federal
Author: Ina R. Silvergleid
Updating Author: Michael C. Jacobson, XpertHR Legal Editor
- Employers have a duty to investigate employee misconduct once it has been brought to the employer's attention. In some instances, an employer's duty to investigate employee misconduct is required by law, either by statute or legal precedent. See Internal Investigations, Generally.
- Employers should be proactive in informing and encouraging employees to report misconduct in the workplace voluntarily and without fear of reprisal. See Encouraging Employees to Report Misconduct.
- Employers are held to a specific standard when third parties ultimately examine the results and the conclusions of their investigations. Fact finders like judges, juries or mediators will look to determine if the employer met this standard in conducting its investigation and whether the action taken following the investigation was appropriate. See Standard for Evaluating Internal Investigations.
- Once the employer has decided to investigate allegations of misconduct, selecting the investigator is of paramount importance. Selecting the right person to lead the investigation can be the difference between a minor workplace issue with a simple solution and a major, debilitating lawsuit. See Selecting the Investigator.
- In the course of an investigation, employers may choose to interview the employee(s) accused of misconduct, together with any witnesses to the alleged conduct. Conducting the interviews and recording the results of each is a crucial step in the process. See Interviewing Complaining Witness.
- Employers of a unionized workforce must exercise caution in issuing across-the-board instructions to their employees not to discuss ongoing internal investigations. Such prohibitions may run afoul of the National Labor Relations Act. See Prohibitions on Discussion of Ongoing Investigations.
- Employers have many tools at their disposal in conducting investigations, including telephone and internet monitoring, video surveillance and in some cases, polygraph testing. There are many limitations on the use of such techniques, however, and employers are well advised to research potential legal issues before using any such techniques. See Other Investigation Techniques.
- Equally as important, employers must carefully document the entire process of the investigation, from receipt of the original complaint, to witness statements and the final results of the investigation. See Documentation.
- Once the investigation concludes, the employer is tasked with deciding how to respond to the results. Generally speaking, the employer must act in good faith based on the results of the investigation. If the employer ultimately gets it wrong, its good faith belief in the veracity of its findings may shield it from liability. See After the Investigation.