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Employee refuses to cooperate with internal investigation? That’s a firing offense

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in Discrimination and Harassment,Human Resources

Just as employers have a responsibility to investigate allegations of wrongdoing, employees have an obligation to cooperate with internal investigations. Refusing to do so can be grounds for termination.

You can make such a dismissal stick if you inform employees of their ob­li­­gation to cooperate at the time they are hired.

Recent case: Jamel was born in Tunisia and raised as a Muslim. He married an American woman and converted to Christianity. After becoming an American citizen, he applied for a job as a Customs and Border Pro­­tect­­ion officer with the Department of Homeland Security (DHS). Jamel underwent a background investigation and, when he was hired, promised to fully cooperate in any in­­vestigations into conduct that might violate DHS standards of conduct.

A confidential source tipped off the DHS that one of its border officers, who was allegedly from Tunisia and worked out of the Buffalo office, was willing to arrange ­fraudulent marriages between foreigners and Americans. The DHS immediately fo­­cused its attention on Jamel. The source eventually mentioned Jamel by name and alleged that another new employee who had been in Jamel’s training class held anti-­American views.

The DHS then began an extensive investigation into both men. An agent traveled to Florida to interview someone Jamel had listed as a reference on his initial application. That individual explained that he knew Jamel from working at the same restaurant together. The agent also spoke with Jamel’s father-in-law, who explained Jamel’s conversion from Islam to Christianity.

Because Jamel had never included restaurant employment on his list of past jobs, the DHS questioned him. Jamel admitted he had worked at two restaurants he never revealed in his application and had been paid under the table, never reporting the income to the IRS. He denied knowing anything about the classmate’s alleged anti-American feelings.

The DHS demanded that Jamel under­­go a lie detector test. He agreed. After the first part of the test, the examiner concluded that Jamel had been deceptive when answering questions about possible terrorist activity. Jamel then refused to complete the test. He also refused to participate any further in the investigation. The DHS terminated him.

Jamel sued, alleging national-origin and religious discrimination.

He claimed the DHS had singled him out because he sometimes associated with Muslims and that it was clear that agents focused on his Mus­lim roots when they interviewed his father-in-law.

The DHS countered that there was no connection between the ad­­mittedly obvious investigation of Jamel’s religion and ethnicity and his discharge. He was simply terminated for refusing to further cooperate in the investigation—something he had agreed to do when hired. The court agreed and tossed out the case. (Abdallah v. Napolitano, No. 09-CV-0861, WD NY, 2012)

Final note: The court affirmed that employers can require employees to participate in investigative interviews as a condition of continued employment. Otherwise, employers would be at a terrible disadvantage when trying to get to the bottom of employee complaints. How could an employer investigate a sexual har­­assment claim, for example, if employees could simply refuse to answer any questions. That’s an untenable position.

Advice: Be sure to cover the re­­quirement to cooperate with investigations during your harassment and discrimination training sessions.

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