How to Conduct a Disciplinary Investigation
When confronted with a disciplinary issue that merits further investigation, employers should take adequate steps to ensure the proper enforcement of workplace rules, and avoid exposure to greater liability from outside enforcement actions or employee legal claims.
Determining the scope of the investigation depends on the subject matter of the violation. Employers should decide what type of investigation is appropriate under the circumstances. Certain disciplinary issues do not need extensive investigation, such as an allegation that an employee arrived an hour late for work. An investigation related to falsifying time records may be limited to speaking to the alleged wrongdoer, a supervisor and a payroll representative. Other investigations, such as a workplace violence investigation, may require multiple witness interviews, additional security measures and outside law enforcement assistance. Harassment investigations may include supervisors, HR, counsel, compliance department representatives and various witnesses.
Step 1: Contact Necessary Departments, Supervisors or Employees
Based on the scope and nature of the investigation, and depending on the infraction, the alleged wrongdoer's immediate supervisors, HR, inside or outside counsel or other managers should be contacted. IT departments should be notified if there is a need to search computer files or mobile devices. Any interplay within departments should be coordinated, e.g., legal, compliance or IT departments.
Certain allegations may result in an employee being suspended for the duration of the investigation, e.g., when a supervisor is accused of harassment.
Step 2: Suspend Destruction of Investigatory or Related Documents, Even if Previously Scheduled
Prudent employers suspend the destruction of any investigatory or related documents. Courts do not look kindly upon an employer that fails to identify, locate and preserve relevant records as soon as it is placed on notice of a possible court claim.
Step 3: Choose an Investigator
Attorneys, whether inside or outside counsel, make excellent choices for workplace investigators because the attorney-client or work-product privileges may apply to the investigative documents in the event of lawsuits. An organization may choose as its investigator an in-house counsel who is not a witness to the investigation. In addition, a fair, impartial HR representative is usually a good selection as an investigator.
As a general rule, if the matter concerns a harassment allegation, the investigator should not be the direct supervisor of the alleged wrongdoer or the complaining witness. The investigator should be impartial, objective and properly trained on how to conduct a workplace investigation.
Step 4: Decide Whom to Interview as a Witness
Employers should strive to speak to all witnesses to the incident(s), or those who may have information on the alleged infraction or violation. Careful consideration should be given to the order of witnesses. The complainant and the alleged wrongdoer may have to be interviewed multiple times based on other witness accounts or newly acquired information.
Step 5: Exercise Care in Communicating Investigative Information
Maintaining the confidentiality of an investigation reduces workplace gossip and other distractions, guards against retaliation against any witnesses or complainants and promotes procedural integrity. However, even though an employer may wish to keep the investigation completely confidential, employees may have the right to discuss the disciplinary procedures under the National Labor Relations Act (NLRA). These protections apply whether the workplace is unionized, partially unionized or union-free.
Step 6: Decide Whether to Conduct Any Searches, Surveillance or Monitoring
In some cases, conducting a search of the employee's personal workspace is relevant to the investigation (e.g., regarding a workplace theft accusation). When conducting trade secret theft investigations, it may be advisable to have the IT department analyze employer-issued laptops and mobile devices. Generally, searches of an employee's person should not be undertaken by agents of the employer. If such a search is deemed necessary in a theft investigation, the employer should contact law enforcement.
Employee Privacy Concerns
Employers should guard against invasion of privacy claims during the disciplinary investigation. Depending on the employer's location, employees could file claims based on various state privacy laws related to employee searches or surveillance.
In addition, employers should use caution when using electronic or video surveillance, tapping into telephone conversations and tracking employees' movements. Federal and state laws limit an employer's ability to surveil employees in places where they have a reasonable expectation of privacy.
In unionized environments, employers should consult the collective bargaining agreement (CBA) and comply with any applicable provisions. Discipline is a mandatory subject of bargaining, so that investigations and discipline will be addressed in the CBA. In addition, the CBA may address conditions under which employees may be searched.
If the employer is a public entity or public contractor employer, added notice, due process and constitutional requirements may apply. In addition, public employees may have Fourth Amendment protections against unreasonable searches and seizures.
Step 7: Promptly Schedule and Conduct Events in the Investigative Process
Witness interviews should be coordinated close in time and conducted promptly. Employers should guard against undue influence issues. Investigators need not interview everyone with knowledge of the incident(s), if the additional interviews would be duplicative or fact corroboration is no longer needed.
When conducting disciplinary meetings or interviews, employers should be aware of state or local laws limiting recording of conversations (e.g., state wiretap laws). In addition, public employers or unionized employers may have additional procedural responsibilities when conducting investigatory meetings (e.g., an employee may have the right to union representation during an interview).
Employers should conduct investigative meetings with an individual other than the investigator or the witness present. Having a second pair of eyes and ears attend the investigative meeting is particularly important during a harassment investigation, which may have a greater likelihood of resulting in legal action.
If an employee or witness asks for legal representation during the investigative process, the investigator should adjourn the interview or meeting and allow the witness to decide whether he or she would like to retain counsel. However, if the allegation deals with potential criminal activity, the investigator may want to advise the alleged wrongdoer to retain counsel.
Finally, employers should conduct any necessary or appropriate testing during the investigative process, whether it involves polygraph or drug testing. However, employers may be constrained from conducting a particular test by either federal or state laws and regulations, an employee's employment contract or an applicable collective bargaining agreement.
Step 8: Reach a Determination and Take Corrective Action, If Appropriate
Upon the conclusion of an investigation, employers should determine whether the issue meriting a disciplinary investigation has a basis in fact, and what corrective action should be taken, if any. Under certain laws (e.g., various state fair employment laws), immediate and appropriate corrective action must be taken when an employer learns of an incident requiring investigation. Otherwise, an employer may be subject to greater liability under an enforcement agency investigation or based on an employee court claim.
In some instances, employers may be legally obligated to report certain workplace violations (e.g., safety violations). Failing to satisfy any reporting requirements may result in the employer's increased exposure to fines and penalties.
Absent any legal requirements, however, prompt action following a thorough investigation makes good business sense. Fair enforcement of work rules improves employee retention and overall morale, and promotes integrity within the workplace.
Step 9: Document Effectively
Employers should keep adequate documentation of each step in the investigatory process. These documents should be kept in an investigation file that is separate from the employee's personnel file. Any resulting discipline should be included in the employee's personnel file, however.