How to Handle Alleged Employee Misconduct
OVERVIEW •You should have a working knowledge of the process of handling allegations of employee misconduct so you won’t have to learn while dealing with a stressful situation. •Learn how to investigate allegations of employee misconduct thoroughly and legally. It can save stress, time, and money. •Become apprised of some recent trends and current concerns regarding employee misconduct.
KEEP IN MIND •Having a plan in place for dealing with employee misconduct will minimize stress if a need for that plan should arise. •Clear planning and maintenance of company policies will always help guide employers if misconduct is alleged, and in some cases, can even prevent misconduct. •Prevention is always the best policy!
COMMON MISCONDUCT ALLEGATIONS •Breach of Employer Confidentiality •Theft or Fraud •Sexual Harassment •Violation of Internet Policies •Fraternization •Drug Abuse
REASONS TO INVESTIGATE •Most lawsuits against employers are filed only AFTER reporting a problem internally and the problem is left unaddressed. •According to the National Whistleblowers Center, 89.7% of employee misconduct that led to a lawsuit was reported internally first and ignored. •If a lawsuit does arise, you will be more prepared to handle it if you have investigated first. •Internal investigation of claims proves that you take your code of conduct seriously. •Encouraging employees to report misconduct can help you detect problems early. •Investigating a claim can save you the expense and negative publicity of a lawsuit. •Can help you develop better employee training and policies through detection of patterns in misconduct claims.
II. HOW TO CONDUCT AN EMPLOYEE MISCONDUCT INVESTIGATION: A STEP-BY-STEP GUIDE
Take Action Right Away •Do not ignore the claim or let it drag on. If you respond promptly, it sends the message that you take the allegation seriously and that you are concerned. •Take immediate steps to protect the accuser if there is any violence or harassment reported. You can do this even before conducting an investigation.
Select the Right Person to Investigate •The person you select must be impartial and objective. •They should not have a history with the employee being investigated. •An HR representative is often the best choice, or an attorney if necessary.
Develop a Strategy for Your Investigation •Decide who you need to interview and in what order. •Learn what physical evidence (documents, records, tapes, etc.) you need to collect. •Determine if any additional personnel are needed. For example, an independent auditor or forensic accountant should be engaged for fraud investigations. •Set a timeline so it’s done promptly.
Secure the Investigation •Make sure there is a locked or password-protected file for everything obtained in the investigation. •The investigator should be the only person with access. •Nothing should be updated in personnel files until after the investigation is finished.
Conduct the Interviews •Conduct interviews in private and with appropriate representatives if requested. •First interview the accuser, next the accused, and after that, any person with relevant information in order of importance. •Tell the employee why they are being interviewed, but do not be overly specific. •Ask the employees to be discreet. Do not promise confidentiality, but maintain it as much as possible. •When interviewing the accused, tell them each of the allegations and give a chance to refute them. •Find out how employees got their information. Carefully check all hearsay to rule out that it is a rumor.
Make Sure Information is Documented Properly •Take detailed notes about when the interviews are conducted, who is present, and what is said. •Make sure that enough specific information is obtained to refute or substantiate claims.
•Write a detailed memo after each interview and ask the employee to review it, make changes if necessary, and sign it. •Keep everything about the interview process organized and easy to access in case it is needed later.
AFTER THE INVESTIGATION •Follow up with the complaining and the accused employee after the investigation is complete, regardless of whether a claim is substantiated or refuted. •If the claim of misconduct is substantiated, decide what the consequences will be. If you decide to give an employee another chance, make it clear that future misconduct will not be tolerated and enforce your policies strictly. •Keep the investigation files separate from personnel files. Only documents about the result of the investigation (disciplinary documents, etc.) should be placed in the employee’s personnel file. This practice helps prevent defamation claims. •If the misconduct could have resulted from unclear company policy, revise the rules pertaining to the infraction and provide all employees with an update.
III. CURRENT CONCERNS FOR EMPLOYERS HANDLING MISCONDUCT INVESTIGATIONS
EMPLOYEE POLYGRAPH PROTECTION ACT (EPPA) •The EPPA states that an employer may not require an employee in the private sector to submit to a polygraph test, and that the employee may not be subject to any disciplinary action for refusing to take the polygraph test. •There are several exceptions to the EPPA, the most important being that an employer may require a polygraph test if they are reasonably suspected of involvement in misconduct that resulted in a substantial economic loss or injury to the employer. •In cases where the economic loss or injury exception is being utilized, the employer still MUST provide a statement with the following: 1. Identification of the specific loss or injury. 2. Description of employee’s access to the property that is the subject of the investigation. 3. Detailed description of the basis of the suspicion that the employee is involved. 4. Signature of a person authorized to legally bind the employer.
SOCIAL MEDIA SITES AND EMPLOYEE MISCONDUCT •Use of social networking sites like Facebook, Twitter, Tumblr, etc. in determining and sanctioning employee misconduct is a fast-growing concern for employers. •Case law is being decided and refined constantly, as new social networking sites and technologies arise. Here are some important decisions and trends as of the end of 2011. •As a general rule, the courts are upholding individual companies’ policies regarding employee privacy and use of social networking sites. •This is why it is so important to craft a clear set of policies for your company, and to examine and refine them regularly to keep up with current technological advances. •In some cases, use of social media to post confidential or unflattering information about an employer or company can be grounds for an investigation and disciplinary action. •If an employer has clearly defined policies about what is and is not personal and private in social media, then it is easier to prove that there is no “reasonable expectation of privacy” and posts on social media may be used against an employee in a misconduct investigation. •In several recent cases, courts have ruled that there is NO reasonable expectation of privacy in electronic communication, if it occurs on company equipment, like a cell phone or computer issued for work. •Even if an account is personal and password protected, if the communication is conducted on work equipment, it can be accessed for an investigation.
PUBLIC RECORDS AND EMPLOYEE CONDUCT •Using social media to determine employee misconduct is a potential minefield for employers since the case law is in its infancy, and precedent frequently does not exist. •However, accessing public records is a time-honored and unambiguously legal way to check up on your employees. •The exception is running a credit check, for which you must have the employee’s consent. •You can access and view public records pertaining to your employees through online search services like Accurint and KnowX. •For a small fee or a subscription, these companies can generate detailed reports about an employee based on public record. For example: if they have any judgments pending against them, if they have declared bankruptcy, if they have an arrest record, and other useful information. •Learning that an employee is having financial trouble can lend credibility to an allegation of theft or fraud. •Learning that an employee has an arrest record for an offense similar to that which they’ve been accused can help substantiate allegations of all kinds.
USE OF RECORDING EQUIPMENT Audio Recording Laws •Under Federal and Mississippi law—the Electronic Communications Privacy Act (ECPA)—you can audio record a conversation as long as one of the parties participating in the conversation consents. The recording party can also be the party to consent. •Hidden audio recording equipment is illegal.
Video Recording Laws •Visible video recording equipment is legal as long as the camera is in a non-private place. They can record audio as well, as long as one party consents under the ECPA. •Hidden cameras are legal as long as they are in non-private areas and they do NOT record sound. •In Mississippi, employee break rooms and lunch rooms are considered private areas.