Don’t Walk Away From Personnel Investigations

Don’t walk away from personnel investigations

Ignoring allegations of misconduct is simply not an option

When administrators or supervisors fail to properly respond to allegations, liability exposure to future claims by the accused, the accuser, or a third party escalates dramatically. The best strategy for protecting a facility from litigation is to teach employees the importance of reporting misconduct, as well as to ensure that administrators and supervisors are taught proper protocol for personnel investigations.

Take a Stand on All Allegations
Facility management must take every accusation seriously. There are two main reasons that managers ignore allegations or complaints: (1) Ineffective, lazy managers don’t want to be bothered by the intensive process of an investigation, or (2) the managers are ill-informed about the legal consequences of “blowing off” allegations. Either way, the organization usually pays for these mistakes in court.

To reduce liability exposure, all investigations should be approached cautiously and without haste. Serious allegations such as assault, sexual harassment, or abuse require that the accused be suspended pending administrative investigation. It’s prudent to involve the human resources director or legal counsel when details of an investigation might need to be protected by the attorney-client privilege. Another benefit of involving human resources or legal counsel is to avoid procedural mistakes made by ineffective management.

Sidestep Investigation Mistakes
Interviewer bias destroys the validity of investigations. Interviews must be objective and should be conducted by a neutral person. Once interpersonal relationships enter the investigation, the entire process becomes degraded in the eyes of a judge or jury.

The most common interviewer bias is to control or dilute the information-gathering process. For example, an interviewer might alter the outcome of an investigation by commenting at the start of the interview that the interviewee will be terminated for discussing the interview with anyone, which shows a blatant disregard for investigative principles. Effective interviewers know that the goal of any interview is to put the interviewee sufficiently at ease to encourage honest, candid, and accurate responses. Starting the interview by putting fear in the interviewee is manipulative and is intended to change the context of the employee’s responses-and unfortunately for the facility’s image, the technique works!

Watch Your Step During Interviews
A prompt response to accusations is essential to reinforce the importance of company policies and procedures. Whether involving the accused, the accuser, or witnesses, all interviews must be held privately to prevent potential embarrassment or humiliation. The interviewer should avoid emotional discussions and never become argumentative, angry, or interrogative; he or she should simply focus on exploring the act in question and its potential consequences.

Always let the accused tell his/her side of the story. Keep an open mind and don’t pass judgment until all information has been collected and thoroughly analyzed. Throughout the information gathering, seek to identify mitigating circumstances that might have influenced the action, such as personal problems, other employee involvement, or factors outside the employee’s control.

Employees may refuse to participate in the investigation and demand to leave the interview. It is important never to tell employees they can’t leave, because that could be construed as “involuntary imprisonment.” However, the employee should be informed that leaving the interview will be considered a failure to cooperate, which may result in disciplinary action up to and including termination. At that point, the decision to terminate is no longer based on the employee’s alleged guilt or innocence, but solely on insubordination.

Resignations are also common in investigations. If the employee prefers to resign rather than endure an investigation, have the employee sign a statement reflecting that decision. One huge mistake that overzealous interviewers often make after a resignation has been filed is to demand that the employee still answer questions or risk having the police, or other authorities, notified. That’s extortion! However, requirements vary from state to state regarding reporting alleged abuse, and if that is the issue under investigation, inform the employee of your legal obligation to notify authorities.

Step Back for Inquiries
It’s surprisingly common for family members and relatives of a suspended employee to call and demand information about an investigation. Depending on the severity of the allegations, other outside sources may also attempt to solicit information. The only information that should be disclosed is this: “Pending a complete investigation, no conclusions have been reached.” This shows that the employer is fully investigating the incident without rushing to judgment. More importantly, it prevents management from making premature statements that might later have to be retracted.

Stand Behind Your Decisions
After all avenues of information gathering have been exhausted, it’s decision time. Even though the determination of guilt or innocence may remain unclear, a formal decision must still be made. The investigation process is as important as the decision. If the final resolution is challenged at a later date, evidence demonstrating a fair and thorough investigative process will favor upholding the decision, even if others disagree with it.

Rendering no decision is not a viable option. When no action is taken, it will be argued that the employer condoned the activity, and if a similar incident occurs with the same employee, it’ll be difficult to justify this in court. Management can say they had no idea the employee had a predilection for certain actions after a first incident-but good luck convincing a jury of that. In fact, the plaintiff’s attorney will likely argue that the employer should have known the probability that the behavior would recur.

Don’t Tiptoe Around Terminations
Retaining employees who are ineffective, nonproductive, or criminal is unethical and ultimately detracts from the workplace. Ineffective managers constantly question their own decision making and are just as afraid of making the right decision as the wrong one. But just as employees have a right to challenge “unjust terminations,” employers have a right, and a responsibility, to terminate employees for cause.

Administrators and supervisors must follow their corporate or facility policies and procedures on employee conduct as published. Steps for progressive discipline must also be followed equitably with all employees. Terminations for poor performance or substandard employee appraisals must be documented to reflect the pattern of poor performance and show that the employee was given an opportunity to improve.

For incidents that don’t require termination, it’s important to thoroughly review corrective actions with the employee and maintain the emphasis on correction, not punishment. For example, restate the infraction and clearly define how the employer expects the employee to correct it. Also, reinforce in the documentation that the infraction is unacceptable, and make it clear that further violations will lead to more serious action, up to and including termination.

Document, Step by Step
Even documentation of a single, seemingly insignificant act can save hundreds of dollars in unemployment claims and thousands in court costs. Most companies don’t emphasize enough about teaching managers the importance of keeping accurate records of counseling sessions and terminations. It’s common for managers to use catchall words or phrases such as unsatisfactory, undependable, unreliable, poor performance, or unprofessional. However, such words don’t aid memory recall at a later date, and they certainly don’t assist the employee. Effective documentation allows the reader to form a specific mental picture of the event and leaves few questions unanswered.

Consider the hypothetical case of an employee who stops coming to work and never informs the facility of the reason he quit. Two months later, the facility receives a Notice of Claim Filed from the Employment Development Department (EDD), stating that the employee alleges he was unfairly terminated. It’s common for the manager to only write “voluntary quit” on the separation form for no call/no shows. However, such cryptic comments leave many questions for the unemployment office to ask.

Whenever a facility sends separation paperwork to the unemployment office disputing the employee’s rights to benefits under the prevailing unemployment code, it’s imperative that the documentation clearly portrays the employee’s actions, or inaction, that caused the separation. Ideally, you want the claim to be dismissed at the first stage of the filing process, which is more likely to occur if the no call/no show termination paperwork is documented as follows:

Unfortunately, there are many pitfalls to sidestep in the investigation and termination process, but those pitfalls become bigger without decisive action. By responding immediately to allegations and complaints, investigating thoroughly and fairly, and making informed, documented decisions, managers will greatly enhance the chances of avoiding mistakes and adverse legal judgments.