Sooner or later, every employer will face the need to investigate one or more of its employees. More and more employers are recognizing what an important tool a workplace investigation can be in discovering problems and preventing their recurrence. Some of the most important legal issues for employers to be familiar with before undertaking any investigation of employees are addressed below.
How Does the Need for an Investigation Arise?
Many different problems can lead an employer to start an investigation and not every investigation necessarily fits the popular profile of interrogations, witnesses under harsh lights, and long, drawn-out detective work. Here are some common reasons why companies investigate employees or situations:
• attitude problems
• substance abuse
• discrimination complaints
• harassment complaints
• threats against others
• vandalism and other sabotage
• violations of work rules
• safety problems
• workplace theft
Each type of problem demands its own methods of investigation. But certain common threads run through all types of workplace investigations. The investigator must be knowledgeable about state and federal employment laws; must uphold the privacy rights of employees and others; must conduct a thorough investigation, but without letting it drag on too long; must be objective; and must keep their mind on the ultimate goal of any investigation—discovering the underlying reasons for the problem so that management can take corrective action.
In essence, investigations are just a tool for management to use in analyzing the reasons for problems or gathering data to make management decisions.
Federal and State Laws Requiring Investigations
Many laws in the area of employee relations effectively require employers to undertake investigations in order to meet their obligations under the laws. The general duty of any employer who either knows or should know about a discrimination, harassment, threat, or safety problem faced by an employee is to take prompt and effective remedial action to put an end to the problem.
In order to know what action to take, or to determine whether action is even necessary, the employer must investigate the situation and discover the facts. Employers that fail to investigate such situations usually lose any claims or lawsuits brought by the employee in response to the problem.
Some of the more important laws and legal situations that require investigations by employers include:
• job discrimination laws—Civil Rights Act of 1964 (Title VII); the ADA; the ADEA; and their state law equivalents;
• health and safety laws—Occupational Safety and Health Administration (OSHA)—employers must investigate problems and prevent future similar problems; prevention of workplace violence—employers have a duty to investigate threats and prevent acts of violence in the workplace to the extent possible;
• drug-free workplace laws—Drug-Free Workplace Act of 1988; Department of Transportation (DOT) drug testing regulations; and
• background and credit checks—in order to minimize liability for negligent hiring or negligent retention, employers must sometimes investigate employees' backgrounds—Fair Credit Reporting Act (FCRA) requirements apply.
Privacy Issues in Workplace Investigations
There are important privacy interests at stake in the workplace. Employers have fairly wide latitude in this area but must be aware of important limitations that apply in various situations. In general, employees have the right to keep private facts about themselves and their families confidential; the right to not be accused wrongly; and the right to enjoy some degree of "personal space."
Below are some of the more significant ways in which these privacy interests come up in workplace investigations.
In general, whatever is in an employee's personnel file should be accessed only by those who have a job-related need to know the information. The following general principles apply:
• All information relating to an employee's personal characteristics or family matters is private and confidential.
• Information relating to an employee should be released only on a need-to-know basis, or if a law requires the release of the information.
• All information requests concerning employees should go through a central information release person or office.
In order to reduce the chance of confidential information being released to people who do not need to know it, most employment law attorneys recommend keeping different types of personnel information is different types of files—segregating the information. Some of the types of separate files an employer should consider are:
• general personnel file—job application, offer letter, performance evaluations, letters of commendation;
• medical file (including workers' compensation and Family and Medical Leave Act (FMLA) documentation)—this is the only type of record that absolutely must be kept in a separate file apart from the regular personnel files—that is because the Americans with Disabilities Act (ADA) requires that any medical records pertaining to employees be kept in separate, confidential, medical files;
• I-9 records—keep these in a separate I-9 file because it will make it easier to defend against a national origin or citizenship discrimination claim if you can show that such information is available only to those with a need to know (in other words, that those who might have made an adverse job decision were not aware of the person's national origin or citizenship status); also, if your I-9 records are ever audited, it would be better if the auditor only saw I-9 records, instead of all kinds of other records mixed in that might give rise to reports to other governmental agencies;
• safety records—for the same reason you would want an Immigration and Naturalization Service (INS) auditor to see only I-9 records in an I-9 audit, you want an OSHA auditor to see only OSHA-related records in an OSHA audit; this safety record file might also contain documentation relating to an employee's participation or involvement in an OSHA claim or investigation—and limiting access to such documentation would make it easier to keep the information from influencing possible adverse decisions against the employee that in turn could result in retaliation claims under OSHA;
• grievance and investigation records—maintain a separate file for these records because they often contain embarrassing, confidential, or extremely private information about employees that could give rise to a defamation or invasion of privacy lawsuit if such facts were known and discussed by others within the company—also, making it known that investigation records will not be divulged may make it easier to persuade reluctant witnesses to give frank and honest answers in an investigation.
The human resources department can develop a security access procedure for these various files. The company can keep an overview by cross-referencing in one file the relevant documents in another file. If a person who has access to one file wants to see another document in a separate file, they would need clearance under the file access procedure in order to do that.
Searches at Work
In general, employees have a reasonable expectation of privacy in certain things or areas where they work, unless they have been given reasonable notice that no such expectation exists and that they may expect such areas to be viewed, inspected, or monitored in some way. For example, employees who have never been told that their briefcases or purses might be subject to inspection would have a legitimate expectation of privacy in those things.
A similar expectation would exist if the employee is allowed to have a work desk with a lockable drawer, or a personal locker in an employee break area—if the employee has never been told such areas might be subject to search, he or she would have a reasonable expectation that such areas would be private and not subject to search by the employer.
The key for an employer that wishes to have the flexibility to search a particular thing or area of the premises is to dispel any reasonable expectation of privacy on the part of employees by letting the employees know that certain things and certain areas will be subject to search at any time at the discretion of company management—with or without the presence of the affected employees.
A good search policy will make all areas of the facility subject to search, as well as anything the employee brings onto the premises, including all work areas, equipment, furniture used by the employees, lockers, containers of any type brought by the employee onto the premises, and even personal vehicles left parked on company parking lots.
Drug tests are, of course, a form of investigation. Drug testing laws vary from state to state but employers may be able to do drug testing under a variety of circumstances such as:
• pre-employment testing
• for-cause testing (this also includes "reasonable suspicion" testing)
• post-accident testing
• random testing
But with any type of drug testing, the employer must keep the results absolutely confidential, and the documentation should be kept in the same confidential medical file that is used for ADA purposes. There are many legal issues to keep in mind and it is essential to have a clear written policy letting employees know about the types of testing that may be done and what will happen if a drug test turns out positive.
Defamation consists of communicating false information about a person to a third party, either intentionally (with malice) or with reckless disregard for its falsity. A company can be liable to any of its employees about whom false information is released if it makes the information known itself or negligently allows the false information to be released.
For that reason, employers must be extremely careful with the information that often results from investigations. This is why it is recommended to keep information relating to investigations in a separate investigations file. Under no circumstances should an employer allow an employee under investigation to be talked about in ways that could generate defamation liability for the company.
Managers should be trained to never say or write anything about an employee that cannot be proven with reliable documentation or firsthand testimony from eyewitnesses.
Other Legal Issues Associated with Investigations
Almost all laws relating to the workplace rights of employees include provisions prohibiting employers from retaliating in any way against employees who file claims or who assist in the filing or investigation of claims. Employers must take great care when investigating employees to ensure that the company does not take any unwarranted action against the employee that might appear to be retaliation for filing a complaint or claim.
In addition, managers must be trained to know when to “back off” with an employee who is involved in a claim.
False imprisonment is a cause of action that can be brought against a company by an employee who feels that during part of an investigation, the employee was restrained or confined by the employer to the point where they felt "imprisoned." A company investigator must be very careful not to give the impression that the employee will be physically confined or restrained during an interview, for example.
In a typical interview situation, the investigator will want to sit behind a desk or in a chair, facing the door that is the exit for the office. The employee being interviewed should sit with their back to the exit door and, if necessary, be reassured that they will not be prevented from leaving.
This arrangement also minimizes the risk to the investigator that the employee might become violent; if the employee feels that leaving is easy, they will probably do that rather than go out of their way to attack someone who is not in the exit path.
Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress (IIED) can be the basis for a lawsuit if the investigator conducts an interview in such a way that the employee feels unusually humiliated or threatened. Successful suits on the basis of IIED are rare but can occur if the employer's action is seen as offensive to a reasonable person and would be viewed as outrageous by a reasonable society.
There is generally no valid reason for an investigator or any other company official to shout at an employee, use slurs or other demeaning language, or cast the employee in a humiliating light—all actions that have been the basis for successful lawsuits in this area of law.
One sometimes hears about claims for negligent infliction of emotional distress, but that is not a valid cause of action in many states. Nonetheless, employers must be careful to keep tense situations from escalating out of hand, since fine legal distinctions between negligent and intentional acts may be lost on juries in a close case.
Assault and Battery
Assault and battery can arise in an investigation if an employee claims that they feared that an investigator was going to touch them in an offensive or harmful way (assault) or that they were actually touched in such a way (battery). This is why, for example, an employer should never physically force an employee to submit to a search.
Instead, the employer should inform the employee that submitting to a search is required and that refusal to submit to the search can lead to immediate termination from employment—essentially reminding the employee about the company's search policy.
Employers sometimes find themselves the subject of a malicious prosecution lawsuit if they are perceived as too aggressive in pursuing criminal prosecution of an employee. If an employee is reported to the police or described as a criminal, and the employer encourages the authorities to arrest and prosecute the employee, but there is ultimately no basis for criminal charges, the employee may sue the employer for maliciously prosecuting the employee.
If an employee is suspected of wrongdoing and if it would be appropriate to get law enforcement involved, it may be best to simply report the incident or circumstances to law enforcement authorities. If the information reported to law enforcement happens to include the names of employees who may have committed a crime or have material information regarding a crime, those employees cannot successfully sue the employer for malicious prosecution, as it is not malicious prosecution to simply furnish factual information to the police and let them investigate the matter.
Invasion of Privacy
The common law tort of invasion of privacy consists of the disclosure of private facts about a person. There are two main elements to invasion of privacy:
• the information contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person; and
• the information is of no legitimate concern to the third parties to whom the information was released.
Because workplace investigations often reveal highly intimate or embarrassing facts about people—especially in the case of sexual harassment—the information must be kept completely confidential by the employer and all who are involved in the investigation.
Methodology for Investigations
A company has many different ways of conducting investigations. Sometimes a company might use searches or drug tests to investigate a suspected problem. It might also try monitoring of telephone calls or of an employee’s use of the company’s computer system or internet access, or of video surveillance of certain areas of the workplace.
Companies may also use more traditional means such as interviews by investigators and background checks by government agencies and private companies hired for that purpose. Telephone, audio, and video monitoring and background checks may implicate employee privacy rights, and an employer should be well informed before using such methods and resources.