How To Investigate Employee Misconduct
In my last column, we described the top 10 disciplinary offenses that get employees into trouble. In this article, we will describe how to apply those policies in a fair and consistent manner, thereby minimizing the chance of grievances from unions, charges from government agencies and lawsuits.
Let’s start with the assumption that you have a clear and well-drafted set of work rules in your company. The first step in enforcing these rules is to educate your supervisors and managers in what the rules mean and how they are applied.
Consistency is critical. Rules that are unevenly or erratically applied can be a major embarrassment for employers. Inconsistency leads to claims of favoritism or even discrimination. Supervisors and managers should have someone they can turn to if they’re not sure what to do.
Once management becomes aware that a disciplinary infraction has been committed, it should conduct an investigation. This sounds more intimidating than it really is. An investigation is nothing more than a series of simple and logical steps. Anybody who is responsible for conducting the investigation should be knowledgeable enough to take the following steps.
First, talk to people with first-hand knowledge of the events and ask them about the facts. Find out what happened, when it happened, where it happened and who was present. The person conducting the investigation should take notes of what was said. After all, the investigator may have to produce information months or even years after the event. Memory alone is not sufficient. Also, you want to guard against people changing their stories later.
Second, see if there is any physical evidence — a time card, broken tools, a surveillance video or any other physical item that helps in understanding the event.
Such items should be preserved and protected immediately. Things get lost over time. Videotapes can be recorded over if they is not pulled immediately. If there’s a complaint about poor work, a cell phone camera may provide useful images.
Third, after you have spoken to the witnesses and preserved the evidence, talk to the offender. This is simply common sense and fair. If the employee has a reason to justify his or her actions, you want to know about it. It may change the way you view the matter.
The last thing you want is a defense that takes you by surprise later because you didn’t ask enough questions. If the employee and the investigator are of different genders, it’s advisable to have another person present. Again, take good notes.
A word of caution: An employee may refuse to discuss the matter with you or demand the presence of a union representative or some other person. This is OK and, in many cases, is the employee’s legal right.
You can’t force somebody to talk with you if they don’t want to. However, you can remind the employee that you are giving them the chance to tell his or her side of the story. If the employee doesn’t use this opportunity, management will have to make its decision based just on the information it has available.
If the employee is willing, the investigator should encourage him or her to provide a written statement. If the employee or a union representative tries to obstruct the investigation, that should be noted in writing somewhere.
Fourth, the investigator should consider the “variables.” These include things like the employee’s length of service, requirements for progressive discipline or a past disciplinary record. These variables could aggravate or mitigate the severity of an offense.
Always remember that similarly situated employees should receive similar treatment. Some offenses, however, are so serious that no variables need be considered. Assault and theft are examples that come to mind.
After these steps have been taken, the investigator should make his or her findings known to whoever will make the final disciplinary decision. Records of past cases should be consulted to assure consistency. A file should be started in order to preserve the investigator’s notes and the physical evidence so that they are available when needed.
There you have it. An investigation can be simple but still yield the desirable results of thoroughness, fairness and consistency. These will all pay dividends down the road if the employee decides to resort to legal action.
Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.
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