The vast web of federal employment laws gives many employees protection from discrimination. Whistle-blowers, military service members, members of minority groups, workers age 40 or older, disabled employees and those who have taken family or medical leave all qualify for some sort of discrimination protection.
Firing any member of those worker classes opens an employer to a potential lawsuit.
WHAT’S NEW: Two recent U.S. Supreme Court decisions have broadened worker protections. In one case, the court ruled that it may be retaliation if an employer fires the fiancé of an employee who has filed a discrimination complaint.
In another case, an employee who was also a member of the armed forces won when he demonstrated that, even though the supervisor who decided to fire him bore no anti-military bias, those who supplied information used in his termination did. This theory—known as the “cat’s paw” theory—postulates that supervisors who are unwittingly manipulated into disciplining or firing a worker must do more than just rubber-stamp other supervisors’ findings.
HOW TO COMPLY: The Supreme Court has clearly signaled its unwillingness to tolerate even the appearance of circumventing the nation’s anti-discrimination laws. Employers must have investigative procedures in place to help guide decision-making when an employee could be disciplined or terminated.
When to investigate
Any of the following could trigger a workplace investigation:
- Suspected misconduct
- Rule violations
- Sudden change in employee behavior
- Suspected substance abuse
- Discrimination or harassment complaints
- Employee threats
- Instances of vandalism, sabotage or workplace theft.
Use common sense when deciding whether to investigate. For example, you do not have to wait for an employee to file a harassment charge. If a manager or supervisor has reason to believe harassment may have occurred, you should investigate.
Have procedures in place
These tips apply to virtually all investigative situations:
- Step back. Avoid judging the situation until you have all the facts. Keep an open mind and let the facts guide the investigation.
- Identify the issues. Write down what you know and what you must find out. Identify obstacles to finding the facts—things such as office politics, personal relationships, , etc. Get backing from a key superior if necessary, but let it be known you will seek the facts, and those who hinder the investigation may face disciplinary measures—and those who co-operate will be protected.
- Consider seeking legal advice. Weigh whether to involve your attorney at the outset, especially if there are red flags of potential liability. Run your investigation procedures by your attorney to determine if they are adequate. If the situation might be better handled by an outsider, see if your attorney (or someone he or she recommends) would be better suited to run the investigation.
- Maintain confidentiality. Identify those who need to know about your investigation and what they need to know to do their jobs. Similarly, maintain all confidential information in secure files separate from any employee’s file.
Gather the information
Prepare for each interview by identifying the questions to be asked ahead of time. As responses dictate other investigative avenues, follow them to their conclusion, but return to the prepared questions and make sure they are all answered completely.
Start with broad questions and then narrow to specific issues. Once the witness answers the prepared questions, ask follow-up questions such as, “Is there anything else I should know about? Do you have any other concerns?”
Interviewers shouldn’t tip their hand to witnesses. They should ask questions in a balanced way, with the intent of determining facts. Any other approach could be interpreted as an attempt to influence the witnesses’ answers.
Make a determination
After gathering sufficient information, investigators must determine what happened and craft an appropriate response. If the investigator concludes an employee should be disciplined or terminated, confer with everyone involved. Appoint a devil’s advocate to take the side of the employee. That helps avoid groupthink.
It’s a good idea to have your attorney present at this meeting. He or she can hear all sides of the issue, and alert you to possible liabilities that could result from any action or inaction.
Preserve for posterity
Preserve all documentation including question lists, witness statements and notes about your deliberations. You may need them in court someday.
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