Published in the Columbus Business First, October 29, 2004

Workplace investigations reduce corporate liability
By Dean Boerger

Benefits of a thorough investigation?
Most employers are not pleased to learn that they have a workplace problem serious enough to require an investigation. However, you can turn a potentially negative situation into a positive one by investigating in a way that strengthens and protects your company. Some common workplace problems that will need immediate investigation include:

-Sexual Harassment

-Harassment

-Employee Theft

-Employee Misconduct to include unsafe acts and drug and/or alcohol use

-Workers Compensation Abuse

Here are a few things that a thorough investigation should provide to you:

Determining what happened. The ultimate goal of any investigation is to determine the root of the problem. This is a key factor in order for you to take the appropriate action to resolve the problem. Since taking action without being informed can lead to disciplining the wrong employee, allow the problem to remain and cause more problems.

Eliminate employee problems quickly. An investigation will assist you in determining who the cause of your workplace problem is, so you can take action before the situation escalates. If you are dealing with a problem employee, you can discipline that worker. If you discover that employees are breaking the rules because they don't know what you expect from them, you can implement training programs, re-publicize and distribute your policies, and make sure your supervisors and managers are enforcing the rules.

Enforce company policies. Consistency and enforcement of all company policies and rules is important in maintaining a safe and acceptable workplace environment. Terminating one employee for a policy violation and not terminating another employee for the same violation will be seen as favoritism in the eyes of civil courts, EEOC, unemployment agencies and others reviewing the reason someone is terminated. Always be consistent and always document all disciplinary action and counseling sessions, whether verbal or written.

Encourage employees to report wrongdoings. Investigating and dealing with problems immediately will encourage workers to come forward with their issues and concerns. This will assist you in determining what has occurred and resolve the issue immediately. It will also avoid or reduce bad publicity. When you ignore complaints and problems, you give the impression that you are unconcerned about your workers or the law. And if your failure to deal with a problem becomes public knowledge -- through a lawsuit, for example -- it could really affect your company’s reputation and revenue.

Protect your company from lawsuits. A thorough investigation is a type of insurance policy, protecting the decisions you make now from legal challenges in the future. If someone who is affected by workplace misconduct -- an employee who is sexually harassed, for example -- sues your company, you can argue that you took action as soon as you learned of the problem, which will protect you from liability in many cases. If an employee who was disciplined or terminated as a result of your investigation files a lawsuit challenging your actions, you will be able to show that you acted reasonably and in good faith, which will go a long way towards defeating the employee's claim.

On the other hand, however, a poor investigation can lead to employee lawsuits, by giving employees the evidence they need to demonstrate that you were careless, that you discriminated, that you spread false information, or that you treated employees poorly, among other things. Failing to investigate is almost always a verdict in favor of the plaintiff or former employee -- if an employee can show that you knew about a problem and did not take action or investigate, you will be legally responsible for any harm that employee suffered.

How do you conduct a good investigation? By being fair and thorough and making good-faith efforts to get to the truth. Even if you come to the wrong conclusion, you are legally entitled to take action (for example, to discipline or terminate an employee) based on the results of your investigation, as long as you investigated properly and your decisions were reasonable based on the information available to you.

This guide is in no means a substitution for consultation with labor and employment counsel regarding employee problems nor is it meant to be legal advice.