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Most employers conduct some type of pre-employment screening, which is actually a form of investigation. The pre-employment background check investigates the facts that are presented in a potential employee’s resume or application. In this article we are going to examine the difference between pre-employment screening and post-employment investigations, and discuss some of the preparation needed in order to protect your employees and your company when faced with the need for a workplace investigation.
The subject matter of workplace investigations can be diverse, ranging from topics such as vandalism, violations of workplace rules, workplace violence, theft, suspicion of substance abuse, discrimination/harassment complaints, and many other issues.
Prior legal cases have established that an employer has a general duty to investigate claims, specifically for questions of discrimination, harassment, threats or safety issues, and to take action in an impartial and timely manner. However, there are many legal issues surrounding workplace investigations. Care must be taken to ensure that the person you select to conduct the investigation is knowledgeable regarding applicable federal and state laws.
Below are some resources for specific workplace investigation laws:
Ohio Law
Federal: US EEOC
Drug Free Workplace Act of 1988
Fair Credit Reporting Act (FCRA):
http://crimcheck.com/resources/
http://www.ftc.gov/os/statutes/031224fcra.pdf
For a workplace investigation to meet the basic criteria that will protect your interests in court, keep the following points in mind:
Have an investigation strategy in place before an allegation occurs – The worst case scenario is that a company is faced with a serious allegation, having no investigation plan in place. You probably have an emergency action plan and perhaps an evacuation plan in place, but an investigation plan is just as important. Details should be worked out in advance including; having a knowledgeable investigator on staff or counsel, knowing what questions should be asked, how to maintain confidentiality, and knowing the process for documentation.
Know when an investigation is needed – Policies and procedures should be in place that define the situations which will require internal investigation. Allegations of bullying, threats, theft, safety violations, and many other issues could be cause for an investigation. Identify those issues that may affect your company and define the steps to be taken.
Utilize objective and skilled investigators – Because of the complexity of laws involved in workplace investigations, and the fact that they vary by industry and state, the investigator involved needs formal training. This could be in the form of legal counsel, human resource personnel, or outside investigative consultants. If internal personnel are utilized, insure they do not have a reporting relationship with anyone involved. This is especially true if there are concerns or allegations of discrimination involving a supervisor.
Begin the investigation as soon as possible, but don’t rush in unprepared – One of the most important aspects of the internal investigation is that it is undertaken in a timely manner. This shows the employees and the courts that the company has shown due diligence in its investigation. Too often, however, the investigation is rushed into, without a plan. Preparation is key; have your plan in place, and use it.
Take excellent notes – Document, document, document. As with any workplace issue, employer liability hinges on the accuracy of documentation. Insure that only facts are reported and retain the reports/statements in a secure area.
Confidentiality – When speaking to complainants, witnesses, and employees, do not make promises of confidentiality. Although the confidentiality of the complainant and witnesses must be maintained to some extent, it cannot be promised. If a lawsuit ensues, or to further the investigation, witness names and other details may have to be compromised. The investigation file should only be made available to personnel on a “need to know” basis.
Finally, ensure that the outcome of the investigation is impartial, legally defensible, and concise. The quality of the investigative process can be the difference in the legal and financial outcome of the case.