If you’re already committed to a full-fledged investigation for employee misconduct, we’ve got you covered on procedure and best practices for employee workplace searches.
But merely suspecting wrongdoing before the investigation phase is a different story. What should an employer do to protect the status quo—and employee interests—when an issue arises?
Do your background research
The company’s employee handbook should be your first stop in addressing potential misconduct. Consult your handbook to find out exactly what the “official” company stance is on the conduct at issue. This step is paramount because one of the employee handbook’s main functions is to put workers on notice of what conduct is prohibited and, equally important, what the consequences may be. An employee handbook should act as the first fair warning against proscribed behavior.
By the same token, you don’t want to blindside a worker with an accusation not grounded in sound policies. If the handbook language is unclear or incomplete, you’ll want to consider revising and expanding it (coinciding with an informal discussion between a supervisor and the employee). At a minimum, your employee handbook should define categories of “misconduct,” outline the investigation process, notice requirements, effects of disciplinary action on employee salary and benefits, and any appeal procedures.
It’s also wise to include a statement of company philosophy to reinforce the policies. Injecting purpose into otherwise formulaic procedures can make workers more responsive to protocol.
Unless the alleged conduct is severe or some risk is clear and present, a gentle hand might yield the best results. If an employee is under suspicion, start by looking into his or her case file and research the employee’s history. This can provide a framework to the situation and establish a pattern of behavior (for better or worse). It may also give you some talking points.
Then, you or your HR rep should talk with the employee off the record. The goal is to gain insight into what might have happened in a neutral and non-threatening way. Keeping lines of communication open is important, especially in this type of situation where undesirable behavior can stem from discontent or concern regarding something that may not be on your radar. Remember, the company’s role in any inquiry is that of a neutral arbiter, and by representing yourself in this way you can give an innocent employee the opportunity for vindication or expression of discontent.
If the scenario involves a third party or another employee, consider a round table discussion with all individuals present. When the company is more interested in resolution than punishment, mediation can be a powerful tool, and you should never underestimate the influence of a respected coworker acting as a mediator.
Set the groundwork for something official
If an informal resolution isn’t forthcoming, you’ll need to prepare to launch an official investigation.
In preparation, you should assign an investigator. This person can be a supervisor from another department, an HR rep, or some other person; but it should always be someone removed from the “chain of command” who is objectively neutral.
Next, decide how to handle the employee who is the subject of investigation during this process. If the suspected conduct is serious enough (especially if it affects a third party), consider placing the employee on paid administrative leave during the investigation. This approach tends to strike a balance between fairness to the employee and the ability to conduct an unfettered inquiry.
Whatever your course of action, the employee will need to be informed. Where possible, make this a face-to-face conversation to keep things personal and respectful—though, of course, if safety is an issue you can send notice of an investigation or administrative leave by phone or email or in writing.
It can be difficult to discuss these matters but remembering to adopt a neutral stance and refraining from accusatory language will keep things cordial. If you expect confrontation or some other difficulty, you might want to have another ranking worker in the meeting as well.
Don’t forget the housekeeping
If the employee will be removed from the workplace for any period, give him or her the opportunity to take necessary personal items from the office. Conversely, be sure to retrieve company items from the employee’s personal possession.
And of course: document everything. If for no other reason than to protect yourself from legal liability, document all details of the investigation, from the specific inquiries made, to facts and items discovered, to the company’s final determination. Be sure to set up your infrastructure to smoothly handle documentation, as this will be the basis for your employee database going forward.
Reach an equitable decision
Sometimes, deciding what to do when all the cards are on the table is the hardest part—after all, you and your managers will need to stand by the decision that’s made. Your best resources here are the employee handbook, which will hopefully serve as a roadmap for possible outcomes, and company precedent for disciplinary actions, which you can use to narrow your options for a consistent decision.
In determining a course of action, consult company philosophy on such matters. Counseling or coaching is often favorable when dealing with a generally valuable employee. In the abstract, valuing rehabilitation over punishment tends to preserve and even enhance company culture.
The last piece to the disciplinary puzzle is deciding whether to cite the violation internally. Doing so will put other employees on notice of the prohibited conduct and its consequences but can also expose loopholes in company policy if you don’t stay consistent.
Epilogue: EEOC compliance
Several themes run throughout our discussion: clear and constitutional policies, disciplinary consistency, and good documentation. Abiding by these philosophies also has the attendant benefit of avoiding retaliatory employee grievances under the Equal Employment Opportunity Commission.
A strategic approach to workplace disputes will pay dividends, so develop your policies and handle each incident thoughtfully and you’ll be sure to do right by your workers.
This article is meant to be utilized as a general guideline for handling suspected workplace misconduct. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first. If you have questions about your particular legal situation, you should contact a legal professional.
Mark Turner can be reached by phone at 440-571-7773 or by email at firstname.lastname@example.org. Mark and the attorneys of The Gertsburg Law Firm now offer Cover My Six, a one-stop legal audit for your business, led by award-winning litigators and in-house counsel. CM6 minimizes your exposure to lawsuits, investigations, disgruntled employees and customers, and all the damage that comes with them. Visit www.covermysix.com to learn more about how to protect your business from lawsuits with this brand-new service.