Depending on the type of employee problem you're dealing with and its severity, you may have to go beyond conducting a basic investigation and employ advanced investigation techniques. These advanced techniques, such as employee monitoring and polygraph tests, may be legally prohibited under certain circumstances.
If you're an employer you are likely at some point to become aware of a problem with an employee or receive a complaint from another worker or a customer. Before you take any action, you must first investigate the situation. You need to be sure that you have all the facts and that you understand what went on, as much as possible. In order to effectively investigate you will either have to conduct a basic investigation or need to turn to advanced investigation methods.
Basic investigation methods
If you witness some improper behavior or if one of your employees or customers informs you of inappropriate behavior on the part of one of your employees, you'll need to check it out. While basic fact-finding might seem easy and obvious enough to do, it's important to know what to ask and how to get information.
When employees or customers bring improper conduct to your attention:
- Thank them (you want to encourage people to speak up and be open about these matters with you).
- Ask them, in private, to describe exactly what they witnessed.
- Ask them to give you a written statement, if the situation warrants one.
- Assure them that you will treat the complaint with seriousness and confidentiality.
- Be sure to follow up with them when the situation has been addressed (don't divulge anything about the disciplinary action with the complainant - you must protect the confidentiality of the disciplined employee, too).
When you start looking into a problem or incident, begin by making sure that you are operating without bias against one or more people involved in the incident. Investigations are useful only if they are accurate and impartial.
Getting the information you need. Use these guidelines to help you get the information you need:
- Ask for specifics. Get details. Do not assume anything.
- Get names of witnesses. Interview all possible witnesses.
- Review every file and document.
- Visit the place where the incident occurred, if necessary.
- Ask open-ended questions that don't require witnesses to confirm or deny your stated or implicit conclusions.
- Keep confidences and conduct the investigation in private.
- Maintain your objectivity.
- Watch the body language of individuals. For example, some body language enthusiasts believe that if people fold their arms across their chests, avoid eye contact, scratch their noses, or turn their body away from you, they may be lying or not telling the full truth.
- Respect the privacy of those involved.
- Take good notes for documentation purposes.
A word about anonymous complaints. There is a natural tendency to ignore anonymous complaints. This may not be a good idea. Prior to going to an external third party, such as the Equal Employment Opportunity Commission (EEOC) or an attorney, some employees may complain anonymously. You must put aside the fact that a complaint is unsigned or the complainer is unknown and decide if the complaint deserves a thorough investigation or if you should ignore it. If it seems likely that the complaint came from an employee, greater weight should be given to the complaint.
If you decide to investigate the complaint, do so as thoroughly as possible given the few details that you have. In the event that the investigation uncovers policy violations or errors, treat those the same as an employee complaint - rectify any errors that you can.
There are other methods that you can use in conducting an investigation. While some of these methods are rather involved and drastic, they may be helpful in extreme situations.
Advanced investigation methods
When a normal investigation, including interviews and statements from employees and other individuals, does not seem to be giving you the information you want, you may consider some alternative information-gathering methods.
Some of the advanced methods that can be used in certain circumstances are workplace searches and surveillance, monitoring phone calls and email, and lie detector testing.
Before you do use more advanced methods of investigation, be sure to weigh the practicality of the information you would get against the time and trouble you'll go to get it. And remember - you still may not get the information you want.
In investigating, it is important not to trample the privacy rights of your employees. Make sure that the methods of investigation you adopt are legal. If you have doubts, consult an attorney or try to find another way to get the information you need.
Searches, surveillance and monitoring of employees
Whether a workplace search or surveillance and monitoring is legal or not depends in part on the reasonableness of the employee's expectation of privacy and the reasonableness of the employer's intrusion. When you do conduct surveillance or searches, do so for a business purpose and in confidence.
If you conduct a search of employee's desks, lockers, or other "personal space," there are a few things that you should do beforehand:
- Issue a broad policy statement clearly saying that you will conduct unannounced and unapparent surveillance or searches.
- Have all employees acknowledge your policy and acknowledge that they submit to the policy.
Workplace surveillance might include the installation of cameras in your office, production facility, or showroom floor. Regardless of what you are monitoring:
- Surveillance should not extend to the restroom or lounge areas of the workplace.
- Once an employee leaves the workplace, surveillance should end.
Surveillance can be an expensive, time-consuming way to investigate a matter. If you feel that you must employ it as a tool, consult both legal and technical professionals to help you make the right choices. Also consider whether the actions you will take based on the surveillance justify the expense you will incur.
Employee monitoring
Employee monitoring, like surveillance, is a highly complicated and controversial way to gather information for an investigation. Employee monitoring can also invade an employee's privacy, and its legality depends on the reasonableness of both the employee's expectation of privacy and also your monitoring.
You should have a policy to address monitoring and other privacy concerns and it should be in a employee handbook or on an employee application. It should be signed by each employee to indicate that the employee understands and consents to the policy. Some companies also place the policy on log-in screens to appear each time an employee uses the computer.
Here are a couple of tips about employee monitoring:
- Monitoring should not extend into highly private areas in the workplace, such as restrooms and lounges.
- Monitoring generally should be limited to the workplace. Only in the most unusual and rare circumstances should surveillance move beyond the workplace.
There should be a clear relationship between monitoring and a business-related reasoning. To show that any monitoring you do is clearly related to the ordinary course of your business, you must show that:
- Your monitoring policy is generally justifiable on the basis of your legitimate business needs.
- The subject matter of each monitored communication is one in which you have a legal interest.
Telephone monitoring. Where possible, it is best to monitor only those telephone lines that, with the employee's knowledge, are dedicated exclusively to business use. You should strictly enforce your policies against the use of such business lines for personal calls.
Monitoring should stop as soon as any particular call has been identified as personal in nature. In all but the rarest of cases you should not engage in the indiscriminate monitoring of all incoming or outgoing calls on lines used by employees, even if there is reasonable cause to do so.
Do not bug employees' offices or otherwise surreptitiously intercept or monitor in-office conversations - you can't invoke the business use exception in connection with the interception of such oral communications.
Electronic mail monitoring. Employees have a reasonable expectation of privacy - make sure that your investigative methods don't violate that. You should issue a policy that establishes a legitimate business interest to monitor e-mail and that decreases any expectation of privacy employees may have in email if you want to monitor it.
If you want to monitor employees, but are unsure about the legality of doing so, consult your attorney to analyze your specific fact situation.
Employee polygraph investigations
Generally, you cannot use polygraph testing to screen prospective employees and you cannot use the polygraph, except under certain, narrow circumstances, to test current employees.
When can you test? You may use the polygraph to test current employees under the following circumstances:
- if there are national defense or security reasons
- if employees have direct access to controlled substances in the course of employment
- if employees are security guards
- if there is an investigation of theft or other similar situations and there have been losses (but only under specific guidelines)
Polygraph testing limitations
The specific guidelines (from the federal Employee Polygraph Protection Act) under which you can test employees within the scope of an investigation require that:
- There must be an ongoing investigation involving actual economic loss.
- The employee that you wish to test must have had access to the items that created the loss.
- There must be reasonable suspicion.
- You must provide the employee with a statement concerning the reasons why the test is to be conducted.
You must provide a statement that contains the above-listed information to the employee that you want to test. The statement, which must fully disclose the loss, the employee access, and the basis of suspicion, must also:
- be given to the employee at least 48 hours before the test
- be written so that the employee can understand it
- be signed by you or your representative
In no instance can polygraphs be used for random testing or for investigations of unspecified incidents.
What are the employee's rights? The employee's rights include the following:
- The employee may terminate the test at any time.
- The employee cannot be asked any intrusive or degrading questions.
- The employee cannot be asked questions concerning religious beliefs, racial opinions, political beliefs, sexual preferences, or beliefs concerning labor organizations.
- The employee cannot be tested if a physician has, in writing, advised against such a test on mental, physical, or other medical grounds.
In addition to the above, there are more guidelines on notices that must be posted regarding who may conduct the tests, how the tests are to be conducted, and how records should be kept and disclosed.
As with other consultants, select your polygraph consultant with care and ensure that the individual who will do work for your firm meets all necessary qualifications.
