Risks of Workplace InvestigationsMark Dacanay
July 24, 2009 — 2,720 views
All employee complaints of harassment, discrimination or any misconduct should be taken seriously.
An employer should be able to objectively decide what action should be taken to resolve each issue. Sometimes in order to get the truth, a workplace investigation must be performed.
The problem is that there are also a lot of risks in performing workplace investigations. There are a host of rights that may be violated in the process.
That is why it is very important for those conducting the investigation to be mindful of the rights and laws that may be affected.
Here are some of the risks and tips on how to avoid them.
Committing discrimination upon investigating discrimination
This could occur if an employer singles out an employee in an investigation because of religion, sex, color, national origin and race.
An employee may also file a case against his/her employer if they failed to take action upon a complaint by the employee because of the same reasons as above.
Workplace investigations should be done with sensitivity towards, religion, sex, color, national origin, race, etc.
Invasion of employee's privacy
During workplace investigations, especially with harassment and discrimination cases, the employer may have to ask delicate questions to the employee.
An employee may charge the employer with invasion of privacy during a workplace investigation if the employer questions an employee about information or activities that does not concern job performance, conduct at work, or relations with the accused.
To prevent invasion of privacy claims, the company could follow the following guidelines:
* The company should develop policies and consent forms to smooth out issues in privacy.
* The company should only start a workplace investigation based on documented factual allegations.
* The company should keep all information it has gathered confidential. The information should only be shared to those who "need-to-know."
In workplace investigations, this usually arises during employee interviews. The employer has the right to question employees about the alleged incident that warranted the investigation.
However, in doing so, the employer cannot ask an employee to stay against his/her will, either through threats or physical acts.
To prevent this, an employer must respect the wishes of the employee. If the employee wishes to leave the room without answering, the employer should have no choice but to let him/her.
Violations of Protected Concerted Activities
This refers to violations of an employee's rights to act or complain with another employee about the terms and conditions of their employment.
If two or more employees reported an incident and asked to be interviewed together, the employer cannot discipline or discharge them for that or forcefully interview them separately.
The employer must respect this right or it may be grounds for another lawsuit.
Hiring Outside Help
The best course an employer may take is to get outside help in conducting workplace investigations.
The employer could get help from employment attorneys, private investigators or independent HR consultants.
This is probably the most appropriate especially if the subject of the workplace investigation near the top of the company's hierarchy.