Our law firm has represented both employees and employers in Virginia in connection with employment investigations involving employee alleged misconduct. This article talks about the issues involved when an employer conducts an investigation in the workplace.
Virginia employers (and employers in other states) usually conduct workplace investigations into employee complaints because they can face legal consequences (or more severe consequences) if they do not do so. As an example, if an individual alleges sex harassment / discrimination in the workplace and the claims are not investigated, an employer can be more readily held liable by employees affected by the conduct. The same type of investigation is necessary when dealing with claims of whistleblowing or other alleged inappropriate conduct at work.
The Steps in a Workplace Investigation
The beginning of the process starts with an employee complaint about misconduct in the workplace. This can happen where the employee reports it through a supervisor or other management personnel. Once reported, the misconduct complaint can lead to an investigation. Almost always, in most employment investigations, the employer will hire an outside law firm (or occasionally use internal attorneys) to conduct an employment investigation and will act as the investigator. Once the investigator is appointed, they will start their investigation. Keep in mind that the employer’s goal in these investigations is to minimize liability for the employer. The complaining employee may also be represented by legal counsel.
While an investigator may find an individual employee at fault, the investigator usually wants to conclude and document that there was no fault on the part of an employer. The following steps usually take place in an employer investigation:
- An employees files a workplace complaint;
- An investigator is usually hired or appointed to investigate the complaint;
- The investigator will review the complaint and plan for a thorough investigation;
- The investigator will review any documentation or emails or other evidence available to prepare for interviews;
- The investigator will interview the complainant or complainants about the conduct complained of;
- The investigator will interview the employees with knowledge of the issues in the complaint;
- The investigator interviews the accused employee or employees for their side of the story;
- The investigator conducts follow-up interviews of any witnesses as needed and ties up lose ends;
- The investigator issues a final report with recommendations to an employer; and
- The employer will take action based on the findings in the report, usually referred to as a Report of Investigation or ROI.
Results of Workplace Investigation
Once the employer’s investigation is over, the results and actions taken by the employer can vary. A formal report is usually prepared, along with recommendations on actions to be potentially taken. The investigation can result in the termination or other discipline for an accused employee. The investigation can also vindicate the accused employee. In either event, an employer must be careful in avoiding retaliation against a complaining employee, even when their complaint is found to not be justified. Each investigation is different, and different employers vary in how they handle workplace investigations. The proper handling of an employment investigation can protect employees in the workplace and also reduce employer liability.
If an employee or employer needs assistance with an employment investigation or other issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on our Facebook page or connect with us on Twitter.
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 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. 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 regarding the employee’s alleged misconduct and 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, Virginia or involves 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.
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. 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 represents employees that are under investigation and where the employer seeks to question them in conjunction with an investigation.
Employee Duties 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/or interview witnesses, depending on the breadth of the investigation. Employees, depending on their particular employer, may have a duty to fully cooperate with an assigned investigator or can decline to participate in the investigation unless they are ordered to do so.
For example, federal employees may decline to participate in an administrative investigation if it is voluntary. 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 if Serious
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 associated with the information being sought by the employer and the employee’s role in the matter being investigated. 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.