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May 01, 2013

Proper Investigation of Employee Misconduct

By: Paul Ebeltoft

This article poses questions about your investigatory practices. It is not a test. I’ll provided the answers too.

Q. What do you do when you receive an allegation of employee misconduct?
A. Most HR Professionals will answer, “Well, I investigate it.”

Q. How do you conduct your investigations of alleged misconduct?
A. Again, most HR Professionals will answer, “I find out who the witnesses to the alleged misconduct are. I ask them to give me a statement about what they know. I tell them that their statements to me are confidential. I tell them not to discuss the matter with anyone else.”

Q. What’s wrong with the last answer?
A. In Banner Health Systems, 358 N.L.R.B. No. 93 (2012) the National Labor Relations Board (NLRB) found that, even though you may be acting with good intentions, instructing a witness not to discuss the matter is a violation of law. The National Labor Relations Act’s Section 7 right to engage in “concerted activity” outweighs your care for the integrity of your investigation. In this case, concerted activity is the employee’s right to discuss your investigation with co-workers. The fact that your injunction to keep matters private is founded in good sense – maintaining the fairness of the investigatory process, or protecting the employee from retaliation or pressure – the right to speak to co-workers trumps this “generalized concern.” There is a violation even if there is no threat of punishment if the coworker chooses to ignore the instruction and discusses the investigation.

Q. Your business is not unionized. Does this rule apply to you?
A. You guessed it. The answer is, “Yes.”

Q. Might employer instructions create a risk of discrimination implicating Title VII of the Civil Rights Act of 1964?
A. The answer is “Yes but with a possible difference.” CCH Employment Law Daily reports that Justine Lisser, EEOC Senior Attorney-Advisor and spokesperson, has said: “Because the anti-retaliation provisions of our EEO statutes establish that complaining to anyone (management, coworkers, the media) about employment discrimination is protected activity, an employer policy that disciplines people for discussing employment discrimination allegations that are part of a workplace investigation is likely to violate EEO laws.” Absent from Ms. Lisser’s description of a violation is a mere “suggestion” to maintain silence about an investigation. Suggestions that do not cloak a threat are “less likely to be found to have violated EEO laws.”

What Can HR Professionals Do?

Be careful. Do not take comfort in the semantic differentiation between a direction and a request. It is the employee’s view of your statement, surrounded by objective facts of where, when and how it was delivered, not your intention in making it, that will define whether yours is a request or a direction that your employee remain silent.
Further, the NLRB has hinted that, even if you truly only suggest that the employee not talk to anyone, a policy that permits discipline for violating investigatory confidentiality will convert your suggestion to a threat. Also, the more routinely HR gives the instruction (or even request) not to discuss, the more likely it is to violate the right of speech and association.

Before any suggestion or directive about silence can be imposed, according to the NLRB, HR must affirmatively determine whether the "witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up." Take the following steps to bring your company into compliance with this new wrinkle.

Step One: Review your investigatory policies and procedures.
Step Two: Remove any reference to making requests to maintain confidentiality.
Step Three: Remove any discipline for breaching the confidentiality of an investigation
Step Four: Add a requirement to determine whether witnesses discussing the investigation will likely taint it. Clearly, the opportunity for taint, cover up, fabrication of evidence, pressure, retaliation or worse will vary from witness-to-witness and from investigation-to-investigation.
Step Five: Be sure to have some objective reason to fear a loss of a fair and impartial investigation in each investigatory case before you request or instruct an employee to remain silent.
Step Six: Document your findings.

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Reprinted with permission from an article submitted for publication in the May, 2013 Southwest Area Human Resource Association newsletter.