8
When Bad Things Happen to Good Employers
How Do I Handle Volatile Workplace Issues?

INAPPROPRIATE OR ILLEGAL EMPLOYEE CONDUCT can create a wealth of problems for any employer. It can result in a decrease in productivity, damage to the organization’s business or reputation, injuries to employees and customers, and exposure to costly legal liability. Employee misbehavior can take many different forms—from substance abuse that can create workplace hazards, to workplace violence that threatens individual safety, to improper e-mail and Internet use that can result in exposure to lawsuits and security violations. In this volatile world, all employers should be vigilant about protecting the safety and security of their employees. The potential legal exposure for failing to make reasonable investigations into the background and on-the-job activities of employees is continually on the rise. Employers must understand the warning signs of inappropriate or illegal conduct, the preventive measures to take, and what to do when employees engage in behavior that is likely to put the company or others at risk.

The increasing emphasis on security is, however, combined with mounting concern about individual privacy in all areas of our society. Every day, companies exchange information about our buying habits, track our online activities, and develop and use new surveillance technologies. The outcry from privacy advocates against the increased collection and sharing of personal data has led to heightened public awareness and laws to protect individuals. Employers also need to understand where to draw the line in checking up on the workforce. The employer that goes too far in its quest for knowledge and conducts overly intrusive investigations and monitoring runs the risk of significant legal and human resources problems that may far outweigh the benefits of any information obtained.

How does an employer handle these sensitive issues? How far can and should a business go in the investigation of the conduct of its employees? There are no clear-cut answers to these questions. Employers must carefully balance their proper business needs against the privacy rights and expectations of their employees.

This chapter discusses some of the current hot-button issues related to workforce misconduct and how to deal with them effectively and safely.

First, a rule of thumb …

When looking to investigate or monitor any type of employee activity, you should ask yourself these questions:

• Is the scope of the surveillance, monitoring, or investigation reasonable?

• Is there proper business justification for the surveillance, monitoring, or investigation?

• Are proper steps being taken to protect any employee-sensitive information uncovered during the course of the surveillance, monitoring, or investigation from disclosure to parties that do not have a need to know this information?

If you are able to answer yes to all these questions, you are less likely to encounter problems resulting from your actions down the line.

“Does it matter whether my company is a public or private employer?”

Different standards apply to public and private employers. Public employees (i.e., employees of state and local governments and their agencies, school districts, and special districts, etc.) are expressly protected by Fourth Amendment rights to privacy in the workplace, whereas private employees are not. As a general rule, public employers must always either inform workers of surveillance or monitoring or position all surveillance equipment in visible locations.

ELECTRONIC MAIL, INTERNET, AND COMPUTER USE

Computers are indispensable to today’s workforce, and most of us cannot imagine life without e-mail, the Internet, and smart phones. To complicate matters, Facebook and other social networking sites play a major part in many companies’ business strategies, but are also used by individual employees, often blurring the line between personal and business communications.

“Is inappropriate employee e-mail, Internet, and computer use really a serious problem?”

Potentially, it can be. Misuse of these electronic tools can create a host of legal problems for an employer. E-mail transmissions are considered “documents” and can be used against an employer in a lawsuit in the same way as any written letter or memorandum. Today, employee e-mail messages play a role in a majority of corporate lawsuits and have been presented as evidence in claims of discrimination, sexual harassment, and other illegal activities. Even when the user deletes messages, they do not just “go away”: They remain in the company’s electronic archives. Deleted messages can be recalled, and an improper message can come back to haunt an employer months or years after the message was first transmitted.

Similar issues arise with general computer use. Employees commonly create and store personal documents on employer-supplied hardware. Furthermore, excessive non-business-related Web surfing can impede business productivity, and improper browsing—for example, viewing pornographic material in the workplace—can lead to charges of sexual harassment or discrimination from employees who are involuntarily exposed to this material.

“What steps can I take to reduce improper e-mail, Internet, and computer use?”

You must develop and communicate a policy regarding online issues, which should apply to all employees with access to these tools. Depending on the specific business concerns and risks faced by your individual business, you may additionally consider using some form of electronic monitoring.

“Do employees have the right to privacy in their e-mail, Internet, and computer use?”

Generally, an employee sending personal e-mails in the workplace and using company-supplied Internet access does not have the right to privacy, nor does a right to privacy exist related to Internet use or personal files stored on a company desktop or laptop computer, or sent on a company-owned BlackBerry or other smart phone device. The electronic mail systems and computers at work are the employer’s property. As an employer, you have the right to expect that employees will use these tools for proper business purposes, and you have the right to monitor employee activity for potential violations of this expectation. In addition, because e-mail messages and computer files can be used against a company as evidence in a court of law, you have the right to take steps to minimize the risk that an employee may create documentation that is discriminatory, harassing, or otherwise illegal or improper.

However, there is a limited exception to the general rule that employees have no expectation of privacy in the workplace. Under the laws of some states, if an employer is found to have created for its employees a “reasonable expectation of privacy,” employees may be able to legitimately claim that employer screening violates their individual privacy rights.

“How can I protect myself from claims that I violated an employee’s reasonable expectation of privacy?”

The best way to protect yourself is to directly let employees know, both verbally and in writing, that they have no right to expect privacy in any of their activities related to company e-mail, Internet, and computer use. Make it clear that all these systems are company property. Even if you do not currently conduct electronic monitoring, do not promise employees that you will not do so in the future.

“Is it advisable to monitor employee e-mail, Internet, and computer use?”

There is no single answer to this question; the decision is entirely up to the employer. There are a number of sound business reasons for monitoring. Not only are employers concerned with preventing legal exposure, but they also want to ensure that employees are working productively on company time. In addition, the issue of security is paramount.

Organizations wish to protect the safety of their employees and customers, and they have a strong interest in ensuring that their confidential and proprietary information is not being sent out of the company without authorization.

On the other hand, there may be some good reasons not to monitor employee e-mails and other computer activity, or at least to use some discretion in the scope of the monitoring undertaken. Excessive surveillance can be damaging to employee morale. Monitoring without notifying employees that they are being monitored may lead to a lack of trust in the integrity of the organization. If the organization decides to monitor employees, it is best to limit the scope of the monitoring to concentrate on proper business concerns and to notify employees of this practice on a regular basis.

In deciding whether to conduct electronic monitoring of employees, a company should first clearly establish what purposes it has for doing so, as well as the extent of the screening to be conducted.

Purpose of Screening. Not all the reasons mentioned previously will apply to every company. Make a list of the ones that apply to your organization. If you clearly understand the specific business interests that you wish to address, you will be better able to determine the scope of monitoring activities and credibly communicate to employees the reasons for the screening.

Extent of Screening. If you decide to monitor e-mail, Internet, and computer use, carefully consider the extent of the screening you plan to conduct. Electronic screening can vary widely in scope, but generally falls into the following categories:

• Random spot checks of messages

• Restriction of monitoring to use with individuals suspected of some form of wrongdoing

• Use of software that scans employee e-mails for certain keywords that are likely to signal a harassing or discriminatory message, or the transmittal of proprietary information

• Continuous surveillance of all employee computer-related activities

Limit the scope of screening to that which is necessary to achieve your legitimate business purposes. The more intrusive the monitoring, the more likely it will be to have a negative impact on employee morale and perception of the company—especially if you are unable to present a credible explanation of why the company is taking these steps. These problems could potentially outweigh the benefits of any information uncovered by the screening.

Availability of Other Protective Measures. There are various software filter packages that can help employers limit access to pornography or other sites that are inappropriate or can drain productivity. Using these filters can help employers prevent problematic Internet browsing in a less intrusive way than full-scale monitoring.

“What problems are presented by Facebook, Twitter, and other social media, and how can I prevent them?”

If you think employees are too busy at work to use Facebook, you are mistaken. A recent study found that Facebook is used significantly more often than Google. Social networking can be more than a productivity drain, however. In some instances, employees have used these tools to divulge company secrets or malign the organization. Unless the employee’s job involves recruiting, marketing, public relations, or other interaction with potential clients, it is unlikely that the individual’s job requires access to social networking sites. Again, it is an individual choice whether to ban social networking at work altogether or to develop a policy that advocates judicious, sensible use of these tools and that sets forth guidelines regarding an acceptable middle ground.

“How can I adopt and communicate standards regarding proper e-mail, Internet, and computer use?”

Whether or not you decide to monitor employee online activities, it is critical to develop and communicate a sound policy regarding proper use of the company electronic systems. Most employees who misuse these tools do not do so intentionally. In situations involving e-mail use, employees often do not understand that these transmissions, by their nature, are not private documents and that inappropriate use of the system opens both the company and the individual to potential legal exposure and personal embarrassment. Similarly, employees using Facebook and other social networking sites do not understand the public nature of their posts or the damage that a business can suffer as a result of ill-considered disclosures. You may choose to block employee access to these sites, as well as access to Web-based e-mail accounts such as Google or Yahoo. If you do not choose to do so, a well-drafted, well-communicated company policy will instill in employees the instinct to think twice before clicking the “send” button or posting inappropriate messages on Internet sites.

“What should the policy say?”

A sound e-mail, Internet, and computer use policy should contain the following elements:

• A statement that the employer’s e-mail system is company property, to be used for the purposes of furthering company business.

• A statement as to whether personal e-mails and Internet use are permitted, defining any limitations on personal use of the system. This definition should be as specific as possible; for example, using a phrase such as “personal computer use should be reasonable in duration” leaves much more to interpretation than “personal computer use should be limited to twenty minutes per day.”

• An explanation of the rules governing the use of the e-mail, Internet, and computer system. For example, employees should be informed that use should comply with all applicable laws and regulations and that the system should not be used to:

1. Transmit or receive confidential or sensitive information, or information about the business

2. Transmit or receive discriminatory, harassing, sexually oriented, offensive, or other illegal or improper messages

3. Download unauthorized software onto the employer system

• A statement explaining the business reasons for conducting electronic monitoring (if you intend to do so), as well as the circumstances under which monitoring will take place.

• A statement that the employee has no expectation to privacy regarding any e-mails, any computer documents sent, received, or stored at the workplace, or any activities related to the Internet.

“How should I communicate the policy?”

Distribute the policy regularly to all employees. Require all employees to sign an acknowledgment that they received, read, understood, and agree to abide by the rules. If you are adopting this type of policy for the first time, hold employee meetings to explain the rules and answer individual questions.

VIOLENCE IN THE WORKPLACE

No employer wants to think that there is potential for violence in its workplace, but workplace violence is a disturbing fact of life. A recent report by the Bureau of Labor Statistics indicated that workplace homicides account for 10 percent of all fatal work injuries—the second highest cause of workplace deaths. When workplace violence does strike, the results can be devastating and can include not only harm to employees and/or customers, but also negative publicity, workers compensation costs, OSHA charges, and lawsuits.

Obviously, not all incidents of employee violence can be predicted or prevented, but companies today are expected to take reasonable measures to keep informed of potential threats to the health and safety of employees and customers. Employer liability is most likely to arise when the company has failed to take the appropriate measures to:

• Screen potential employees for incidents of violence related to their past employment

• Recognize the warning signs in present employee behavior that may foreshadow potential violence and act appropriately to analyze these signs

• Take reasonable steps to prevent violent behavior from occurring

The measures taken by the employer must be balanced against employees’ privacy rights. This means that companies must take care both to avoid undue intrusion into a worker’s private affairs and to limit disclosure of employee confidential information to those individuals within and outside the organization with a need to know.

“What are my rights and obligations as an employer regarding preemployment screening for a history of workplace violence?”

In Chapter 1, we gave guidelines for doing a preemployment background check and discussed ways to avoid liability for negligent hiring resulting from failure to make proper inquiries into a candidate’s background. These guidelines are especially applicable to situations involving workplace violence.

“Do I have any obligations if I discover during preemployment screening that an employee has a history of workplace violence?”

In the course of a proper background or reference check on a potential employee, you may discover a history of workplace violence and decide not to hire this individual. Once you have made this decision, refrain from any further discussion of the details of the applicant’s history, either internally or externally. Since your company has not personally experienced any incidents of violent conduct, you do not have the duty or the right to further disclose any information you may have gleaned from background or reference checks. Improperly disclosing this information can lead to defamation or other legal charges. The results of the background or reference checks should simply be retained in the event that the individual reapplies for employment.

“What are the warning signs of workplace violence?”

While there is no comprehensive list of predictors that an employee or group of employees is about to turn violent, some common indicators can include:

• Explicit threats and verbal abuse

• Inappropriate displays of anger, such as screaming and slamming doors

• Continually disgruntled attitude

• Paranoid behavior

• Exhibition of wide mood swings, unexplained attendance problems, or other erratic behavior

Except in situations involving specific threats, you cannot always tell whether an employee who exhibits one or a few of these characteristics is likely to become violent. After all, everyone becomes angry sometimes, disagrees with decisions, or breaks the rules, and an occasional display of this conduct does not mean that an individual is dangerous. The more often and intensely an employee displays these behaviors and carries out these patterns, the more closely you should watch this individual.

“What do I do when an employee exhibits these warning signs?”

As uncomfortable as management may feel in confronting an employee who exhibits the warning signs, you cannot afford to ignore the problem. While there is a chance that the conduct will “go away by itself,” the risk is much greater that the problem will escalate into a more dangerous situation. In situations involving ambiguous behavior (i.e., behaviors other than direct threats, which should be dealt with immediately, under company policy), observe the following guidelines:

• Have a discussion with the employee. The manager and/or the HR representative should sit down with the employee and discuss the company’s concerns about the behavior. Keep the conversation focused on objective, observable aspects of specific behavior rather than subjective or speculative thoughts. If the employee has been having attendance problems or nodding off to sleep at the job, discuss these behaviors rather than asking, “Are you on drugs?” If the worker has been screaming and throwing objects, say, “You were screaming and throwing objects,” rather than, “Are you having personal problems?” Let the employee know that this is not acceptable behavior in the workplace. Document the meeting in writing. Not only will a written record help you in the event that you have to eventually terminate this employee, but if this behavior escalates to violence at some point, it will enable you to prove that, as an employer, you recognized and attempted to deal with the problem.

• Do not become involved in “managing” the problem. During the course of the discussion, the employee may reveal specific problems that he or she may have that are contributing to the behavior. Rather than becoming involved in hearing the details of these problems, be prepared to refer the individual to outside help, through a formal employee assistance plan (EAP) or other outside counseling source (see Chapter 6 on benefits). If you do not have an EAP, you can find an outside counselor through your benefits or workers compensation insurance provider. Employers are not trained to diagnose and deal with the multitude of complex problems that employees may face, nor are they qualified to determine whether an individual has the potential to become dangerous. Often, employees who exhibit high-risk behavior will not admit they have a problem or even that they are doing anything wrong.

• Keep results of investigations confidential. As you investigate and deal with an employee’s high-risk behaviors, keep all information learned from any source completely confidential, and do not share any details with anyone who does not have a need to know. This will usually be limited to the EAP, a member of the human resources department, company attorneys, the employee’s manager, and/or any outside counselor who is involved. Do not encourage, or take actions that encourage, gossip or speculation about the employee. When investigating an employee’s behavior, limit your inquiries of coworkers to specific facts about the behavior rather than asking other employees their opinions on what might be causing the conduct. For example, instead of asking, “Do you think Mary is cracking under the stress here?” you might ask, “Have you observed Mary having problems with her supervisor?”

“Can I force an employee to undergo psychological testing and/or counseling as a condition of employment?”

It will be easier for you to do so if your organization has developed and communicated a clear written policy against workplace violence and included in the policy a provision mandating referral for employees who have displayed behavior that the employer has reason to believe may lead to violence.

“Can I prevent employees from bringing guns to work?”

Not always. Several states have enacted laws that prohibit employers from banning employees from bringing guns to work and leaving them in their cars. This creates serious problems for businesses and increases concerns of potential violence, especially from disgruntled employees. If you do business in a “guns at work” state, check whether your state statute has an exemption that includes your business or provides extra protections such as allowing employers to set up a secured parking area for vehicles carrying guns, or prohibiting guns in company-owned or company-leased vehicles. Create and implement a policy that makes clear that while guns may be permitted in vehicles, they are not permitted outside vehicles or inside company buildings. These policies should include the express consequences for violation, up to and including termination.

“How can I prepare my company for the occurrence of an incident of workplace violence?”

No matter how vigilant you are in spotting and dealing with potential trouble situations, there is no way to eliminate all workplace violence. With the help of attorneys, trauma and security experts, and human resources professionals, develop a comprehensive safety plan for dealing with incidents of workplace violence. This plan should identify the following:

• Emergency crisis procedures that outline a chain of command for emergency response

• Counseling resources for employees, victims, and families of employees and victims

• Steps to reestablish a secure workplace and to determine when the workplace is sufficiently safe for employees to return to work

• A public relations team that will handle internal and external communications

The way you, as an organization, respond in the face of an emergency will be critical in reestablishing a sense of safety among employees and generating goodwill from the community as a whole.

SUBSTANCE ABUSE IN THE WORKPLACE

As with workplace violence, the issue of substance abuse in the workplace is an unpleasant one to face. Some employers will deny that the problem exists at their organizations; others might feel certain that they would be able to recognize the problem in employees when and if it occurred. The costs of substance abuse at work, however, are staggering and can be quite a revelation for those employers in denial about the problem.

According to the U.S. Department of Labor, almost 75 percent of illicit drug users are employed full or part time. Furthermore, the DOL estimates that between 10 and 20 percent of workers who die on the job are using alcohol or other drugs. These sobering statistics show that all employers must understand the consequences of drug and alcohol use at the workplace and take appropriate steps to prevent and eliminate the problem.

“How can I reduce substance abuse in the workplace?”

The rights and obligations of employers in this area are covered by individual state laws and, if applicable, the Drug Free Workplace Act of 1988 (DFWA). As a preliminary step, determine whether your business is covered by this legislation. The DFWA applies to some federal contractors and all federal grantees. Employers who do not have or do not intend to apply for federal contracts or grants are not subject to these drug-free workplace requirements. In addition, even if the act applies, it does not apply to the entire company; only employees working on the covered grant or contract must comply.

“What are the requirements of the Drug-Free Workplace Act of 1988?”

The law requires that covered companies take the following actions:

Publish and give a policy statement to all covered employees informing them that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken if an employee violates this policy.

Establish a drug-free awareness program to make employees aware of (a) the dangers of drug abuse in the workplace; (b) the policy of maintaining a drug-free workplace; (c) any available drug counseling, rehabilitation, and employee assistance programs; and (d) the penalties that may be imposed on employees for drug abuse violations.

Notify employees that as a condition of employment on a federal contract or grant, they must (a) abide by the terms of the policy statement and (b) notify the employer, within five calendar days, if they are convicted of a criminal drug violation in the workplace.

Notify the contracting agency within ten days after receiving a notice that a covered employee has been convicted of a criminal drug violation in the workplace.

Impose a penalty on—or require satisfactory participation in a drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction.

Make an ongoing, good-faith effort to maintain a drug-free workplace by meeting the requirements of the DFWA.

“What substances are covered under the DFWA?”

The DFWA applies only to defined controlled substances. It does not cover abuse of prescription drugs or alcohol.

“What happens to employers that fail to comply with the provisions of this legislation?”

Employers that are covered under the DFWA that do not comply with its requirements are subject to certain penalties, which can range from cancellation of the grant or contract to being barred from participation in federal contracts and grant or award proceedings for up to five years.

“What steps should employers that are not governed by this law take to reduce substance abuse in the workplace?”

Employers not required to comply with the DFWA have more flexibility in handling employee substance abuse issues, but it is still advisable for all employers to take proactive steps to maintain a drug- and alcohol-free working environment. These actions can include:

Writing and communicating a clear and comprehensive policy prohibiting the use of drugs and alcohol at the workplace. The document should state why the policy is being implemented, describe the behaviors that are prohibited, and explain the consequences for violating the policy.

Training supervisors in the organization’s drug-free workplace policy, the supervisor’s specific responsibilities in implementing the policy, and ways to recognize and deal with employees who have job performance problems that may be related to alcohol or drug abuse.

Educating employees about the details of the company policy and the dangers inherent in drug and alcohol abuse, as well as the types of help available for employees with substance-related problems.

Providing assistance for employees with substance abuse issues, either through company-sponsored EAPs or by providing an accessible way (such as help lines) for employees to get information about treatment programs.

Establishing a drug testing program. This action involves determining whether drug testing is appropriate for an individual employer and, if so, implementing a sound, legally compliant program.

“Should I conduct employee drug testing?”

Drug testing is required by law for certain positions. For example, the Department of Transportation mandates these tests for individuals who operate motorized vehicles as part of their jobs.

However, most drug testing is optional. Drug tests have traditionally been—and still are—controversial. Some employers believe that the risk of employee death and disability, and the cost to business of drug and alcohol abuse, are more important than the personal freedoms of employees. Other organizations believe that such testing is an undue intrusion on personal liberties and that the tests are not infallible. Each business must carefully weigh the pros and cons of drug testing in light of its individual circumstances and the results it wants to achieve through drug testing.

“What factors should I consider in developing a drug testing program?”

Before implementing a drug testing program, carefully evaluate your specific purposes for conducting the program. You can then develop policies and procedures that will accomplish your objectives without risking damage to employee morale from excessive intrusions on privacy. Among the factors you should consider are:

Who will be tested? Will all employees be subject to the tests, or just employees in safety or security-sensitive positions?

When will tests be conducted? Will the tests be limited to preemployment screening, or will they be conducted during the course of employment as well? If post-employment tests are conducted, will they be random or periodic? Will they be based on reasonable suspicion or for cause? Will they be done after an accident or after rehabilitation?

Which drugs will be tested for? Will testing be limited to the substances for which many federal government agencies require testing (i.e., marijuana, opiates, amphetamines, cocaine, and PCP), or will testing be broader, covering alcohol and prescription substances as well?

How will tests be conducted? A number of tests are available, including urinalysis, saliva tests, hair tests, breath alcohol tests, sweat patches, and blood tests. The laws in individual states vary as to types of testing that may or may not be performed. All federal drug testing programs must conduct tests in accordance with the Guidelines for Federal Workplace Drug Testing Programs published by the U.S. Department of Health and Human Services.

What state and federal laws apply? Employers should completely familiarize themselves with the federal laws and all relevant state laws regarding drug testing. Before implementing any program, contact an attorney to ensure compliance with these regulations.

MONITORING OTHER WORKPLACE DISHONESTY

There may come a time when your company experiences other acts of employee dishonesty, such as theft of company property or the property of other employees, or fraud. Depending on the nature of your business, you may run a high risk of exposure to these violations of trust. How far can you go in using other techniques—such as the search of employee property or employees themselves, video surveillance, and telephone monitoring—to root out the wrongdoer or prevent these incidents from occurring in the first place? You should again take into account whether the actions you want to take are reasonable and necessary for proper business purposes and balance this consideration against the privacy expectations of your employees.

“Do I have the right to conduct searches of employees or their property?”

Generally, employers do have this right, provided they have not created a reasonable expectation of privacy for employees. The best way to ensure that employees do not have a reasonable expectation of privacy is to create policies that state that the company has the right to search their belongings or persons. The policy should also spell out the types of items or places that the employer may search, such as persons and belongings, automobiles parked on company premises, work areas, and lockers. If the company intends to conduct random searches, the policy should also state this.

“Is it advisable to conduct random searches of employees?”

In businesses where there is a high incidence of employee theft, such as retail or manufacturing industries, random searches are common. For other types of businesses, random searches may create more problems than they solve, especially in the areas of employee morale and productivity. For this reason, it is best for the companies in lower risk businesses to limit searches to situations where there is probable cause or reason to believe that they will find what they are searching for.

“What should I consider when conducting a probable-cause search?”

First, consider what factors give you reason to believe that a certain object will be found on a particular employee. Your decision should focus on factors that you have seen or heard about, or on which you have a legitimate basis to suspect an employee or group of employees. Never rely on any preconceived notions you may have about a person’s race, gender, economic background, or other illegal or inappropriate criteria, or you may face charges of discrimination or harassment.

You will also need to consider where you will search. This search should focus on where you reasonably expect to find the item in question. Do not use a search to go on a “fishing expedition” to find instances of wrongdoing that you have no reason to legitimately suspect. If a television manufacturer suspects an employee of stealing from its inventory, the company may search her car, or perhaps her locker if it is large enough to hold a TV product, but it should not search her person to determine whether she is also carrying illegal drugs.

“Suppose the employee objects to the search?”

When confronted with a search of their personal belongings, employees may object on the grounds that the area the employer wants to search also contains confidential items that the employer has no right to see. For example, an employer may want to search an individual’s briefcase for a handgun, but the owner of the briefcase may state that it contains confidential paperwork. One way around this problem would be to give the employee the option of having the briefcase searched by an independent third party. This third party would only tell the company whether there was a handgun in the briefcase, supplying no further details of its other contents.

If the employee refuses to consent to any search, you will generally have grounds for discharging the individual. In these situations, carefully document the circumstances of the attempted search and the employee’s conduct and responses. Do not attempt to physically restrain the employee or to detain the individual against his or her will. This may result in assault, harassment, or false imprisonment charges. If you believe that the employee is trying to remove something from the premises that will cause great damage to the company if removed—for example, a very expensive piece of equipment or confidential company information—it may be appropriate to detain the individual for a short period of time until law enforcement arrives. Scrupulously document your reasoning and the actions taken.

“Can I monitor regular mail addressed to the employee at the workplace?”

Even though federal law prevents the obstruction of mail delivery, according to the U.S. Postal Service, mail is “delivered” when it arrives at the premises of the employer. Therefore, employers are entitled under federal law to read personal employee mail sent to the workplace. Under the laws of some states, however, this type of activity can constitute invasion of privacy.

It is not advisable to read employee mail unless you have a sound and legitimate basis for doing so. Companies that believe they have a proper business purpose in monitoring personal mail should inform employees of their intent to monitor and should state that they have the right to review all mail, even that which is marked “personal” or “confidential.” If, when reviewing an item of employee mail, you discover that it is truly personal and unrelated to anything for which you are screening, stop reading. Never disclose any personal information that you learn from monitoring personal letters.

“Can I listen in on employee telephone conversations?”

In certain situations, an employer is permitted to monitor employee telephone conversations. While telephone monitoring is generally restricted under federal and state wiretap laws, there is an exception to these laws for secret monitoring “in the ordinary course of business.”

There is no clear-cut definition of what constitutes the “ordinary course of business” for monitoring purposes, and different states have different standards for determining how far an employer can go. The ordinary course of business can encompass what is reasonable for a particular job or customary in an industry. It is common and acceptable, for instance, for employers to monitor customer service providers and telemarketers to assess their performance. When courts look at whether an individual instance of monitoring is legal, they will examine the extent of the monitoring and whether it was reasonable to achieve a proper business purpose. Proper business purposes have included allowing businesses to listen in on conversations when they believed employees were disclosing confidential company information to outside parties, and permitting the monitoring of calls after an employee was heard denigrating his supervisors.

Under some state laws, it is also legal to monitor even those employee telephone conversations that do not fall under the “ordinary course of business” standard, provided the employer obtains consent. The standards concerning what constitutes “consent” vary by state. Some states deem consent to exist if only one party to the conversation agrees to the monitoring. Other states require the consent of both parties. Before you undertake any telephone monitoring, it is best to consult counsel as to the laws of the specific state in which your work site is located and the state of the party that the employee is calling.

Even if the monitoring you are conducting is permissible by law, this does not entitle you to listen in on all employee telephone calls. Under federal law you must stop monitoring a call when you determine that the nature of the call is personal. To avoid invasion of privacy claims, you must also keep confidential any personal information you discover from the call.

If you plan to conduct telephone monitoring, have a clearly stated policy informing employees that you reserve the right to listen in on telephone calls.

“Can I conduct video surveillance of employee workplace activities?”

Yes, but you should have a legitimate reason for the surveillance, and you should limit the video monitoring to places where the activity you want to prevent or gather evidence on is likely to take place. Avoid areas where the employee can reasonably expect privacy. If you are concerned with preventing employee theft, you might use video surveillance in the warehouse or display area. For security reasons, you may want to place video cameras at exits and entryways and other high-risk areas.

Do not place cameras in break areas, bathrooms, and employee changing rooms. Some states specifically prohibit monitoring in these “private” areas, but even in states without these specific laws, this type of intrusive surveillance can lead to invasion of privacy claims and be devastating to employee morale. In addition, use video equipment that does not have sound-recording capability, or else you will be subject to the same restrictions as apply to telephone monitoring. Before investing in and installing any type of surveillance equipment, it is advisable to consult with an attorney.

“Can I give my employees a polygraph test?”

As a general rule, private employers cannot require or request that an employee take a lie detector test, and they cannot fire an individual who refuses to take a test. Use of polygraphs is covered under the Employee Polygraph Protection Act (EPPA), which limits the polygraph testing to specific circumstances. The EPPA does not apply to government employees or to private individuals hired by the federal government to engage in certain national security activities. Employers covered by the EPPA must prominently post a notice explaining employee rights under the law. Some employers desire to use preemployment polygraph tests to verify the details provided by the applicant. Under the regulations, employers cannot do preemployment polygraph testing, with the exception of security services firms or pharmaceutical manufacturers and distributors.

If you want to test employees you suspect are stealing from the company, you may test only those employees with access to the stolen property, and even then only with their consent. The EPPA also sets out guidelines and standards concerning the length of the test and the conduct of the test. Some states have passed additional laws related to employer polygraph testing. If you believe your company falls under the limited exemptions of the EPPA and you desire to test any of your employees for any reason, contact legal counsel to discuss your responsibilities under federal and applicable state laws.

CONDUCTING EMPLOYEE INVESTIGATIONS

To obtain further details about any form of employee misconduct, employers will usually need to conduct an investigation. It is critical that companies understand how to conduct effective investigations, since improper investigations expose the company to claims of discrimination, invasion of privacy, false imprisonment, and other charges. Although the details and extent of investigations will vary with the circumstances, there are certain basic rules that apply to all these actions.

“When do I need to conduct an investigation?”

In situations involving fraud or theft, the employer may need to investigate to uncover the identity of the wrongdoer or, if the identity is already known or suspected, further evidence of the illegal conduct. In other circumstances, such as allegations of harassment, discrimination, drug use, or potentially violent behavior, the investigation may stem from a complaint by another employee. Some problems can be resolved quickly and without a formal investigation. In deciding whether to conduct an investigation, consider factors such as:

• The complexity of the issues involved

• The number of employees involved in the complaint

• The level of seriousness of the reported conduct

• Whether more fact finding must be done before the company takes action

“Who should conduct the investigation?”

Again, the answer depends on the nature of the offense and the expertise of company employees. Some companies have employees in the legal, security, or human resources departments who are familiar with the proper method of conducting an investigation. If you do not have this in-house expertise, it is advisable to hire an attorney or other independent investigator to perform the investigation or, at a minimum, consult with an attorney before proceeding.

When using an outside investigator, you may be subject to the provisions of the Fair Credit Reporting Act, which could trigger an obligation to get permission from the accused individual for the third party to conduct the investigation. Professional outside investigators can generally provide the required consent forms.

“How do I conduct a proper investigation?”

If the employees in question are covered by a union collective bargaining agreement, the agreement may contain specifics about how to conduct employee investigations, and it is important that employers adhere to these procedures. In general, there are three steps to any investigation:

1. Planning

2. Fact finding

3. Analysis and conclusions

“How should I plan for the investigation?”

Your goal should be to develop an objective and fair plan that is designed to gather the necessary information without violating the rights of the accused or suspected individuals. First, you will need to determine who, within or outside the company, should conduct the investigation. Assemble all relevant documentation, such as the employment files of the employees under investigation; written documents such as letters, memorandums, e-mails, expense records, or time sheets, and any company policies that pertain to the conduct involved. Speak to legal counsel and understand the relevant laws that apply to both the alleged misconduct and the investigation of the misconduct, and determine whether it is necessary or advisable to suspend the accused employee with or without pay until the investigation is resolved. Determine what other resources may be necessary, such as translators for non-English-speaking employees who will be interviewed, law enforcement for situations involving illegal activities, and public relations assistance, if the situation is likely to cause the employer negative publicity.

“Should I send the accused employee home, with pay, pending the investigation?”

If the accusation centers on a violent act or other activity that could threaten the safety of employees or customers or significantly damage the morale or effectiveness of coworkers, it is advisable to keep the accused away from the premises until the matter is resolved. It is significantly less costly to suspend an employee with pay than suffer potential threats to safety or productivity. In other circumstances, there is usually no reason the accused cannot continue to report to work until a final determination is made.

“During fact finding, who should be interviewed?”

The answer to this question will vary with the situation, but generally your investigators will interview:

• The person(s) making the complaint (if applicable)

• The person(s) accused of the misconduct

• Witnesses to incidents relevant to the misconduct

• Supervisors of the person(s) making the complaint and those accused

• Individuals the complaining party or the accused have requested be interviewed

To avoid claims of invasion of privacy, interview only those people who are involved in or may have direct knowledge of the conduct being investigated.

“How should the interviews be conducted?”

All interviews should be conducted in a private setting to ensure confidentiality and avoid embarrassment. It may be more comfortable and afford more privacy to conduct employee interviews off-premises. Inform all parties interviewed about the purpose of the investigation, the reason you are interviewing them, the seriousness of the investigation, and the importance of their full cooperation. In addition, assure them there will be no retaliation against any participant in the investigation. Often, participants in an investigation are concerned about the confidentiality of the information they provide. While you cannot assure these individuals that you will not share any information, you should inform them that all information will be kept as confidential as possible and will be disclosed only to those with a need to know.

Treat all persons interviewed in a dignified and professional way. Avoid jokes or threats, and do not provide personal opinions about the information discussed. Do not physically restrain employees or tell them that if they don’t cooperate, they cannot leave the workplace. These restrictions can lead to charges of false imprisonment. It is proper, however, to make cooperation a condition of an individual’s continued employment.

Ask questions that are relevant to the substance of the investigation. Do not allow the interview to deteriorate into a general discussion about problems at the company or personality issues with any of the parties involved. Focus questions on the specific behaviors and conduct that are central to the investigation, and ask open-ended rather than leading questions. For example, if investigating a sexual harassment complaint, you may want to ask, “Have you observed any tension in the department between Mr. X and Ms. Y?” rather than saying, “Do people in the department talk about Mr. X touching Ms. Y?”

Distinguish facts from speculation and focus on the facts. Limit your conversations with witnesses to what they personally know or have seen rather than what they heard through the grapevine. Conclude the interview by thanking each participant for cooperating and confirming the company’s policies concerning confidentiality and nonretaliation. Encourage witnesses and complaining parties to report any relevant information that may later occur to them, and to come forward if they witness or experience any future incidents of the conduct being investigated.

Most important, document all interviews. Take careful notes and prepare written statements summarizing each interview. These statements should include the substance of the information obtained from employees, as well as any special instructions given to them during the course of the interview. Ask participants to sign and date the summaries of their individual interviews. If the interviewed individual refuses to sign this statement, at a minimum have the interviewer sign and date it.

“What should I do after I gather the facts?”

You must analyze the facts, reach a conclusion, and take action. Often it is difficult to reach a conclusion after an investigation because the information gathered will conflict. Many investigations come down to assessing the credibility of the participants, examining the facts, and determining the motivations of the individuals. However, it is appropriate to evaluate all these factors and reach an informed conclusion to avoid employee perception that the company does nothing about complaints.

In certain situations, you may decide that the evidence presented does not allow you to reach a firm conclusion about what took place. Even so, it is important to warn the accused to avoid similar conduct in the future and to encourage the complaining party to report any further incidents.

When the investigation yields a more conclusive result, you must determine the action to be taken. This will depend on a number of factors, including whether any policies or procedures were violated, how similar situations had been handled in the past, any legal requirements for handling the situation, and whether there are special circumstances that warrant handling the matter more leniently or strictly than it might otherwise be handled. An employer’s actions can encompass a wide range of options, including:

• Verbal warnings

• Written warnings

• Probation or suspension

• Demotion

• Transfer

• Termination of employment

Once you have analyzed the facts, reached a conclusion, and determined what actions to take, you should inform both the accused and the complaining party of the results of the investigation. It is neither necessary nor advisable to inform witnesses of the results and conclusion. If witnesses ask about the outcome of the investigation, tell them that the matter is confidential and thank them for their cooperation.

“Should I maintain documentation of the interview?”

The investigators should prepare a report of the investigation, summarizing the issues involved, the steps taken in the investigation, the substance of each witness interview, and the findings and actions taken. This report should also include any signed statements of participants in the process.

It is important to recognize that every document prepared that relates to the investigation may one day be admitted as evidence in a lawsuit. For this reason, all documentation should be factual and objective. In preparing your documentation, remember that your goal is to show a jury or other third party that you took the complaint seriously, responded appropriately, and did your best to reach an informed and responsible conclusion and take the necessary actions. This report will also be useful for reference if the same, or similar, misconduct occurs again in your workplace.