Importance of Workplace Investigations
When serious allegations arise in the Virginia workplace, it is very important for an employer to retain a neutral and knowledgable investigator. This is especially so with respect to sexual harassment allegations, where such employer action can be required. Employers are faced with numerous legal risks if they do not conduct an investigation or otherwise fail to adequately investigate the behavior of their employees. For instance, in addition to sexual harassment and discrimination claims, other claims for negligent hiring and retention are being brought in larger numbers. Additionally, a workplace investigation may involve a whistleblower complaint and must be addressed. As a result, employers conduct investigations far more regularly in Virginia than they have in the past.
Purpose of Workplace Investigations
The purpose of workplace investigations is for an employer to gather relevant evidence. The do so to determine the validity of the complaint. If it is based on an employee’s alleged misconduct, the purpose is to determine whether the misconduct warrants a disciplinary or an adverse action (e.g., termination or significant suspension) within the requirements established by law, policy, or regulation or with respect to the employer’s own liability. Occasionally, these types of investigations can lead to a potential criminal investigation. Depending on whether the employer is federal, public sector or a private employer, a supervisor or other designated investigator may be asked to conduct an investigation regarding the facts at issue.
Employees may then be asked to provide verbal or written responses to questions regarding the alleged misconduct. Additionally, an investigation can result in various consequences, such as termination, suspension or loss of a security clearance, where applicable. The purpose in an employment discrimination investigation is to determine whether or not the allegations are credible.
Hiring an Investigator
Once a workplace investigation is required, the next step is for the employer to identify who will conduct the investigation as the investigator. Government employers generally have their own investigators (e.g. Office of Inspector General) and merely assign one or two investigators to a case to evaluate the conduct of employees. However, in the private sector (which covers the vast majority of employees) an investigator must be hired to conduct the investigation. This task is often completed by hiring a law firm and designating an attorney to conduct the administrative investigation. Many law firms conduct these types of investigations. Our firm typically only represents employees in investigations where the employer seeks to question them. There are numerous other law firms that represent employers in these matters. When being interviewed by an employer’s lawyer it is critical to have your own attorney.
Employee Duty to Cooperate
During an investigation, an investigator (i.e. the law firm) will be hired to conduct a workplace investigation. They will review documents (e.g. complaints, emails, documents) related to the investigation and interview witnesses. Depending on the breadth of the investigation, it can involve interviews of numerous employees. Employees, depending on their particular employer, may have a duty to fully cooperate with an assigned investigator. They may also be able to decline to participate in the investigation unless they are ordered to participate. For example, some Virginia employees may decline to participate in an administrative investigation if it is voluntary. The investigator may also order a complete search of the employee’s computer and work emails.
Refusing to cooperate with an investigation or providing false statements or answers during an investigation can be grounds for disciplinary action. Providing false statements, if made to a federal or other law enforcement investigator, can also subject an employee to potential criminal penalties. For private sector employees in Virginia, not cooperating in an employment investigation can lead to disciplinary action or termination in some cases.
Employer Risks in Not Conducting Investigations
Internal or administrative investigations can also involve risks for the employer. If claims are made by employees, inadequate workplace investigations may raise questions regarding the accuracy of the results or whether the employee was treated fairly. In addition, the employer may not like what the investigation uncovers and will have an obligation to resolve or address issues, such as a systemic problem or legal impropriety. Additionally, as mentioned above, if an investigation is not undertaken an employer can be potentially liable for their negligence of complicity in not addressing the workplace issues.
Consider Legal Advice and Representation
Prior to providing information to an employer, depending on the severity of the issues under investigation, it can be important for an employee to discuss with an attorney the issues involved. It is important to determine the scope of the investigation and what legal issues may come into play for the employee. Keep in mind that an investigation being conducted by a private employer’s lawyer is likely looking for misconduct. The employer generally is not looking for reasons to exonerate the employee. An attorney familiar with administrative or internal investigations can provide legal advice to assist an employee in preparation for responding to questions about his or her actions in the matter being investigated. In addition, an attorney, in many circumstances, can often accompany the employee during any investigative interviews.
