Publications
Analysis and Review: What Do You Think? -- April 2004
Our April 2004 What Do You Think? dealt with an employer’s right to conduct workplace investigations of incidents such as sexual harassment, embezzlement, violence, and so on. We reported on a change in the law that removed the requirement that employers give advance notice to employees who are under investigation by a third party hired by the employer, and we asked for your views on whether that would improve the quality of investigations, or whether it would lead to abuse and fabrications in violation of employee rights.
Your comments covered the full range of view points. No consensus appeared. Some felt that that the primary goal was to facilitate the investigation, and if employees were notified in advance, sources could be polluted. Others felt that employees had a fundamental right to receive advance notice of an investigation.
This much is certain: whether or not an employer properly conducted an investigation will remain a key element in an employer’s ability to defend against such claims as sexual, religious or nationality harassment, and in defending employee discipline and termination issues. Formerly, if an employee consented to a third party investigation, it was easier to defeat subsequent employee complaints about that investigation. Now that employers can conduct such investigations in secret, expect a raft of employee charges regarding the propriety of the investigation.
That heightens the need to be especially careful about who conducts the investigation, and how it’s done. Let us know if we can help.
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