At some point, every employer will have to investigate one or more of its employees. That’s why more companies are recognizing what an important tool a workplace investigation can be in discovering problems and even preventing them from happening.
Many problems can cause an employer to start an investigation, and not every investigation fits the popular profile (with interrogations, witnesses under a harsh light, and drawn-out detective work). Here are some of the common reasons why companies investigate employees or situations:
- Attitude problems.
- Substance abuse.
- Discrimination complaints.
- Harassment complaints.
- Threats against others.
- Vandalism and other forms of sabotage.
- Violations of work rules.
- Safety problems.
- Workplace theft.
Every one of these problems will require its own methods of investigation, but there are some common threads that run through every type of situation. The investigator must be familiar with state and federal employment laws. This person must also uphold the privacy rights of employees and other parties involved.
The investigator must perform a thorough investigation without allowing it to drag on for too long. He or she must also be objective and stay focused on the goal of any investigation (which is to discover the reason for the problem so management can take appropriate action).
State and Federal Laws with Regard to Investigation Requirements
A number of laws associated with employee relations require employers to perform investigations to meet their obligations under the law. It’s the duty of every employer to know about a discrimination, harassment, threat, or safety problem that an employee is facing. They’re also required to take prompt and effective action to put an end to the problem. But to know what action they need to take (or whether action is even necessary), employers need to investigate the situation to determine the facts.
Some of the important laws and legal situations that require investigations by employers include the following:
- Job Discrimination Laws — This includes the Civil Rights Act of 1964, the ADA, the ADEA, and their state equivalents (such as Chapter 21 of the Texas Labor Code).
- Health and Safety Laws — Employers are required to investigate problems and take steps to prevent them from happening in the future.
- Prevention of Workplace Violence — Employers are required to investigate threats and must take steps to prevent any acts of violence in the workplace.
- Drug-Free Workplace Laws — This includes the Drug-Free Workplace Act of 1988 and any DOT drug testing regulations.
To minimize liability for negligent hiring or negligent retention, employers must sometimes investigate the backgrounds of their employees (though requirements from the Fair Credit Reporting Act will apply).
Privacy Issues Related to Employee Investigations
There are certain privacy interests that are at stake in the workplace. Employers have a decent amount of latitude in this area, but they need to be aware of certain limitations that apply to a variety of situations. Employees have the right to keep private facts about themselves and their families confidential. They also have the right not to be wrongly accused, as well as the right to some degree of “personal space.”
Whatever is in an employee’s personal file should only be accessed by people who have a job-related need to know the information. There are certain general principles, which include the following:
- Any information about an employee’s personal characteristics or family matters must remain private and confidential.
- Any information about an employee should only be released on a “need to know” basis or if a law requires the release of that information.
- Any information requests about an employee need to go through a central information release person or office.
To reduce the chance of confidential information getting out to people who don’t need to know it, most employment law attorneys recommend keeping different types of personnel information in separate files (which is referred to as the segregation of information).
Privacy Issues Related to Drug Testing
Drug tests are forms of investigation, and Texas employers have the benefit of operating in a state that leaves drug testing up to them. Employers can do drug testing in a number of circumstances. Some of them include the following:
- Pre-employment testing.
- For-cause testing (which also includes “reasonable suspicion”).
- Post-accident testing.
- Random testing.
In any type of drug testing, employers are required to keep the results confidential. The documentation must also be kept in the same confidential medical file that’s used for ADA purposes.
If you’re looking for an employment lawyer in Corpus Christi who can help you come up with the right policies for managing employee complaints and investigations, be sure to get in touch with Gale Law Group.