WORKPLACE INVESTIGATIONS: INTERNAL VS OUTSOURCED INVESTIGATIONS
WORKPLACE INVESTIGATIONS: INVESTIGATOR’S POINT OF VIEW
SEXUAL HARASSMENT TRAINING
HOW TO CONDUCT A WORKPLACE INVESTIGATION
As soon as an employer and or management are aware of a conflict, the appropriate steps to obtain the facts of the conflict should be taken.
An important aspect necessary to successfully investigating any employee related issues is the ability for the investigator to build a rapport with those they are interviewing and or investigating. If management doesn’t have the necessary rapport with everyone involved with the conflict, there is a high probability that the facts with not be obtained, therefore the desired remedy will not be achieved. In most cases, a contracted workplace investigator can successfully play multiple roles and utilize a variety of investigative techniques in order to obtain the required evidence from those involved.
Another important aspect of conducing workplace investigations is the investigators to ability to know when to be discreet. Investigator must strategically use discretion to obtain certain information before employees have a chance to plan and or destroy/hide evidence that could be useful.So timing is of the essence!!! The more time that has transpired, the more difficult it will become to accurately remember the fact and to effectively locate potential witnesses and or evidence. Employees will often fill more comfortable discussion the facts of a conflict when they are confident that their coworkers will never find out that they spoke to or provided evidence to investigators.
The last important aspect of conducting workplace investigations is the investigators integrity and the employer’s assurance that the investigator will keep certain information confidential. This is where contract workplace investigators have a decided advantage over in-house investigators. Contracted investigators have no biases and limited opportunity to share confidential information with the client’s employees. Most investigative agencies go great lengths to protects their clients confidential information and have developed a variety of investigative skills & resources to insure that all sensitive information is kept confidential.
(Audio Example of Supervisor sexually harassing and employee, however the witness is afraid to speak to in-house investigator for fear that they might lose they job or jeopardize a relationship)
THINGS TO CONSIDER BEFORE CONDUCTING WORKPLACE INVESTIGATIONS:
According to the California Department of Consumer Affair’s Business and Professions Code Section 7521 (a-e) and 7523 (a-b) also known as the Private Investigators Act or PIA, no person shall engage in business or accepts employment to furnish, or agrees to make, or makes, any investigation for the purpose of obtaining, information with reference to:
Applicable Code Section 7521 (a-e)
(a) Crime or wrongs done or threats against the United States of America or any state or territory of the United States of America.
(b) The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, act, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person.
(c) Securing evidence to be used before any court, board, officer or investigative committee imprisonment.
(e)For the purposes of this section, a private investigator is any person, firm, company, association, partnership, or corporation acting for the purpose of investigating, obtaining, and reporting to any employer, its agent, supervisor, or manager, information concerning the employer’s employees involving questions of integrity, honesty, breach of rules, or other standards of performance of job duties.
Applicable Code Section 7523 (a-b)
(a) Unless specifically exempted by Section 7522, no person shall engage in the business of private investigator, as defined in Section 7521 unless that person has applied for and received a license to engage in that business pursuant to this chapter.
(b) Any person who violates any provision of this chapter or who conspires with another person to violate any provision of this chapter, relating to private investigator licensure, or who knowingly engages a nonexempt unlicensed person is guilty of a misdemeanor punishable by a fine of five thousand dollars ($5,000) or by imprisonment in the county jail not to exceed one year, or by both that fine and imprisonment.
Please note: Aside from licensed Private Investigators, the Business and Profession Code Section 7522 clearly identifies two other exceptions for conducting private investigations legally:
- Internal Employees (a) – A person employed exclusively and regularly by any employer who does not provide contract security services for other entities or persons, in connection with the affairs of such employer only and where there exists an employer-employee relationship.);
- Attorneys (e) – An attorney at law in performing his or her duties as an attorney at law)
However, most if not all reliable database providers restrict access to licensed private investigators, attorneys and other information entities that must comply with FCRA, GLB and other privacy requirements.
WORKPLACE INVESTIGATIONS BASICS
Employers must first identify potential issues or red flags in the workplace and conduct a thorough investigation to immediately remedy the issue and prevent a similar re-occurrence.
Identifying Red Flags in the Workplace
It is the employer’s responsibility to know when a workplace investigation is warranted. Identifying ticking time bombs in the workplace before they explode is an acquired skill. However, there are numerous red flags that employers can quickly identify and immediately address as soon as they occur:
1. Reports of workplace theft
2. Suspect employee malfeasance
3. Low employee morale and unexplained declines in productivity
4. Vandalism, sabotage or destruction of company property
5. Substance abuse (Many employees ignore the smell of alcohol or marijuana on coworkers; however these are often signs of deeper issues)
6. Physical or verbal confrontations between employees
7. Preventable accident and safety issues
8. Accident or incidents that happen away from security cameras
9. Any threat against a person or property
10. Angry and unreasonable employee
11.Unnecessary employee fraternization
12. Discreet workplace romance, especially involving an employee in a management or supervisory position
13. Formal complaints filed by an employee (harassment, discrimination, grievance, etc.)
14. Employees that report issues but which to remain anonymous and or don’t want any trouble
CREATING A “PLAN OF ACTION”
Once the employer has either been notified of any allegation of wrongdoing or has identified red flags within the workplace, the employer should establish a “Plan of Action” to insure that the investigation is successful and completely legally.
Here are a few issues that the employer must be prepared to address:
Who, what when where why and how…
1. Determine if an in-house investigator and or a licenses investigative agency would be best suited for the investigation.
2. Consider if the in-house investigator can legally access privileged database information, is unbiased and has the experience to navigate the numerous laws protecting employees.
3. Consider the licensed investigative agency’s ability to utilize multiple investigators from diverse backgrounds which may be a crucial factor in obtaining employee confidence…
4. Identify everyone who was involved and or persons who may have specific knowledge that would be useful to the investigation.
5. Determine where any & all evidence is located and secure it. (Bag it, tag it and lock it up) IE: Video, audio, timecards, logs, computer files, hard drives, etc.
6. If any evidence is located in a digital format on a computer or hard drive/zip/flash drive, determine if it has been deleted so that the investigator knows that a forensic computer investigation is warranted.
7. Identify potential witnesses
8. Determine what questions must be asked and answered during the interviews.
9. Determine the goal of the investigation
10. Discreetly discuss with the investigator who will have knowledge of the investigation.
a. Lose lips sink ships. It is always best to err on the side of caution. Time and time again, the wrong person finds out about the investigation and the outcome is always suspect…
11. Keep good notes and constantly update the “Plan of Action” as new information is developed.
12. Establish security protocols for all evidence affiliated with the investigation, as well as for any employee files that are involved in any malfeasance.
LAWS AND LEGISLATIVE ACTS THAT OBLIGATE EMPLOYERS TO CONDUCT INVESTIGATIONS LEGALLY:
Fair Credit Reporting Act (FCRA-FTC), in order to reduce potential liability from “negligent hiring” background checks are essential. When conducting background and or credit check, employers must notify the consumer when an adverse action is taken on the basis of such reports and users must identify the company that provided the report, so that the accuracy and completeness of the report may be verified or contested by the consumer.
Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
Civil Rights Act of 1991, which provides monetary damages in cases of intentional employment discrimination.
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and
Health & safety laws (OSHA), which obligates employers to investigate problems and prevent similar problems in the future. Employers are required to take proactive steps to prevent workplace violence that is reasonable
Drug Free Workplace Act of 1988 (DOL)drug-requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency.
many other applicable federal and state laws exist that obligates employers to conduct workplace investigation, requires employers to take the appropriate steps in protecting employee & consumer privacy, assign a special duty to employer to protect employees and third-parties from harmful acts by other employees, etc. etc..