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Workplace Investigations in Virginia

By John V. Berry, Esq.,www.berrylegal.com

Our Virginia Employment Lawyers defend Virginia employees in 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:

1. An employees files a workplace complaint;
2. An investigator is usually hired or appointed to investigate the complaint;
3. The investigator will review the complaint and plan for a thorough investigation;
4. The investigator will review any documentation or emails or other evidence available to prepare for interviews;
5. The investigator will interview the complainant or complainants about the conduct complained of;
6. The investigator will interview the employees with knowledge of the issues in the complaint;
7. The investigator interviews the accused employee or employees for their side of the story;
8. The investigator conducts follow-up interviews of any witnesses as needed and ties up lose ends;
9. The investigator issues a final report with recommendations to an employer; and
10. 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 from potential disciplinary action.

Conclusion

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. Our law firm also authors the Virginia Employment Law Blog.