by Jennifer Carsen, J.D.
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Download NowGood workplace investigations are thorough, even-handed, and prompt. But what happens when law enforcement instructs you to hold off on your investigation so that they can conduct theirs?
This was a question posed by a participant at BLR's 2007 Employment Law Update conference in Orlando , Florida . The situation involved an employee suspected of using his office computer for activities relating to child pornography. Local police told the employer to not take any action whatsoever until the police investigation had been completed, so as not to "tip off" the suspect. What should an employer do in this situation?
After thinking over the question for a few minutes, presenter Joseph English, a partner in the Atlanta law firm of Taylor, Busch, Slipakoff, and Duma, LLP, advised getting a signed letter from the law enforcement authorities that both spelled out the situation and explained that the employer had been specifically instructed to hold off on the internal investigation.
A conference participant advised a different tack. When the same situation arose at her workplace, her company went ahead with the internal investigation and told police they were investigating a separate matter--the employee's possible violation of a workplace policy vs. the employee's possible involvement in a crime.
Barring such a dramatic conundrum, what general steps can you take to ensure successful internal investigations at your workplace? English had several recommendations, including the following:
- Have a written policy outlining the procedure for employee complaints and follow it
- Remind employees that you will not retaliate against them for bringing a complaint, and also that while you will be as discreet as possible, you cannot guarantee complete confidentiality
- Secure all relevant documents immediately upon the commencement of an investigation
- Prepare a written statement and have the complainant sign it. If he or she refuses to sign, make a notation in the file.
- When interviewing the employee accused of wrongdoing, avoid loaded, accusatory, or leading questions
- When deciding a course of action, review responses to prior similar incidents
- Follow up with the complainant not just once, but several times, following the conclusion of the investigation