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Employee Investigations FAQs

by Jill Schaefer on September 5, 2018

KPA’s recent HRCI approved “Investigations Without Hesitation” webinar went down in the history books as being our most popular webinar ever! It was also co-hosted by FordHarrison, KPA’s partnering law firm.

Naturally, employers attending the webinar had lots of questions. Below are the most common questions that our experts were asked and their best practice answers.

Q: What is HR’s responsibility when an employee makes a complaint about another employee harassing him/her, but then the complainant says he/she is just venting and doesn’t want to file an ‘official’ complaint?

A: Any time a complaint or concern is brought to the attention of HR or management, you have a duty to fully investigate the matter. Even if employees indicate they are “just venting.” If there is inappropriate behavior happening, you want to be sure and address it as soon as possible to prevent future issues or claims.


Q: If we don’t ask the accused the direct question of, “Did you harass Nancy?”, then what should be our question?

A: You should start by asking more general questions, such as, “Tell me about your working relationship with Nancy?” or “Tell me about your day-to-day interactions with Nancy.” You can then move to a more pointed question about the situation: “Tell me about an incident that happened on XYZ date between you and Nancy.”

Try to avoid putting the accused on the defensive by directly asking, “Did you sexually harass Nancy?”


Q: Does the employer have the obligation to report sexual harassment to the police?

A: No, the employer does not have an obligation to report sexual harassment to the police. However, if it results in sexual assault, you should report it to the police and encourage the victim to file a police report. As the employer, you want to be sure you are protecting your entire workplace.


Q: Is it valid to ask the accused if they are willing to submit to a polygraph even if the employer is not planning to actually do so?

A: No, if the employer does not intend to administer a polygraph test, I would not recommend asking the question. If the employee says yes, and the employer does not follow through, it shows a lack of credibility on the employer’s part.
 

Q: Based on the NLRB, are we allowed to request the victim to keep things confidential?

A:  There was a court ruling in 2017 on investigations and confidentiality in which the National Labor Relations Board (NLRB) announced a new rule prohibiting employers from using blanket policies barring employee discussions concerning ongoing investigations.

The NLRB stated that an employer may only prohibit discussions regarding ongoing investigations if it demonstrates on a case-by-case basis that it has a legitimate and substantial business justification that outweighs an employees’ Section 7 rights.

During the course of any given investigation, the employer must determine whether witnesses need protection, the evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there was a need to prevent a cover-up.

For additional information on this topic you can reference:

employerlaborrelations.com/2017/04/03/nlrb-restrictions-on-employer-requests-of-confidentiality-in-workplace-investigations-remain-after-d-c-circuit-decision


Q: Should our investigation questions and answers be written/recorded verbatim or can we summarize the responses?
 

A: Your questions should be fully written and documented. The answers can be summarized. However, if there is a phrase or quote that is an important piece of the investigation, you should fully document that with quotes, notating that it is a direct quote.


Q: Is it OK to ask employees to complete an initial written complaint form if they come into my office to talk about a situation that happened at work?

A: Yes, it would be considered a best practice to have the employee submit a written complaint to the employer. The employee should sign and date the written statement.

You can coach them to provide as many details as possible on the situation and name any potential witnesses.


Q: What are your recommendations regarding witnesses writing statements as part of the interview process?
 

A: We highly encourage collecting written statements from the accuser, accused, and any witnesses. These statements will help back up your interview notes.


Q: Are there any concerns with having interviewees sign off on the notes of the discussion after the interview to verify that the notes are correct?
 

A: There is no issue with asking interviewees to sign off on their written statements. In fact, it’s considered a best practice to have interviewees sign and date the written statement.


Q: What is your documentation retention recommendation?
 

A: You should hold investigation documentation for as long as the employee is an active employee and at least 3 years after their termination date.


Q: Do you have any thoughts on recording interviews?
 

A: We do not recommend recording interviews.


Q: How long should an investigation take? When a complainant is VERY UPSET and wants it to be taken care of NOW, how do I handle that?

A: An investigation should start immediately after you become aware of a situation. Depending on how many witnesses are involved and how many people need to be interviewed, an investigation should take 24-72 hours.


Q: At what point after receiving a written or emailed complaint from a harassed employee, do you let the accused party know that there is a harassment claim against them? Do you wait until the investigations take place?

A: You are not obligated to disclose the specifics of the claim nor the person who brought the claim forward. We recommend you do not disclose this information to protect against retaliation and potential backlash.

During your interviews, we recommend that you focus on asking questions around the situation(s) being reported.


Q: If witnesses discuss an interview/investigation with teammates, can we discipline them for doing so?

A: You want to ensure you have given the proper disclosure during your investigation interview. Emphasize that any information shared during the investigation process should remain confidential and should not be discussed with anyone outside of the interview.

If the employee violates this policy, they can be disciplined.


Q: Are you able to force a witness to participate in an investigation if he/she was named by the harassed as a witness? What do you do when potential witnesses refuse to be involved?
 

A: If employees refuse to participate in a workplace investigation, they can be terminated for cause.

There was a court case in 2016, Gilman v. Marsh & McLennan Cos., No. 15-0603-cv(L), in which the U.S. Court of Appeals ruled an employee can be terminated for cause if they refuse to participate in an investigation.

The second circuit court stated, the deciding factor was whether the orders to cooperate in the interviews were reasonable. If so, the employees could properly be terminated for cause for refusing to “obey a direct, unequivocal, reasonable order of the employer.”


Q: What do you do when the behavior has been reported and management does not address the behavior and it continues?
 

A: If the person who the claim was made to does nothing to investigate the claim, the employee can take the claim to another member of management, or they can take it directly to the applicable state agency or the EEOC. If you are a member of management and are aware of a claim, you have a responsibility to take it to a higher level of management or an owner.


Q: I went to the EEOC’s website and could not locate the types of questions they use in an investigation. Or should I have clicked on the link to file a report?

A: The link to access the interview questions on the EEOC site is eeoc.gov/policy/docs/harassment.html. The questions are located about halfway through the page.


Q: What if no one is allowed to make a complaint to HR? In our organization, employees are told they can’t contact HR for anything and they can only go to their supervisor, even when they have a problem with their supervisor.

A: One of the main roles of human resources is to support employees and help keep the company compliant with state and federal employment laws. Human resources plays a significant role in mitigating a company’s exposure to potential liability for employment-related issues.

We would encourage you to revisit your current policy and strongly encourage you to implement an open-door policy. A significant part of an effective compliant anti-harassment policy is to provide multiple methods of reporting claims, including, not only the employee’s direct manager, but also human resources, any member of management, and outside agencies.

Only allowing employees to report issues to their manager is very limiting, especially if the issue relates to their manager. Employees should be provided with more than one option to report issues and concerns.


Q: How can you promise employees that there won’t be any retaliation if as soon as the supervisors find out about employee complaints, they schedule people differently, treat them differently, give them harder tasks, etc.?

A: If a manager takes a negative action against an employee based on the employee bringing a complaint or a concern forward regarding that manager or any other person, the manager should be disciplined and reminded of the company’s anti-retaliation policy. Retaliating against an employee for a protected activity is illegal and could result in a very costly lawsuit for the company.

Below is a link to the EEOC with additional information on retaliation.
eeoc.gov/laws/types/facts-retal.cfm


Q: What if it’s not a verbal sexual harassment issue but it was a visual offense? Also, what if employees mistake sexual harassment as “just horsing around?”

A: Regardless of whether the offense is verbal or visual, you will want to investigate the matter.

While conducting an investigation, you may determine more often than not, that a harassment complaint represents inappropriate workplace behavior. The employee displaying the inappropriate behavior should be counseled and potentially disciplined.

This is also an opportunity to communicate to all employees the expectation for workplace behavior.
 

Q: If a person is making a complaint against someone, doesn’t the accused have the right to know who the accuser is and the specific complaint? I know that you advised not to ask leading questions and don’t just openly ask “did you do xyz…?”, but at some point, they should know what the exact complaint is and who complained since there should not be any expectation of confidentiality during an investigation.

A: An investigation should always be kept confidential and only those conducting the investigation should have the full details.

An employer is not required or obligated to disclose who filed a concern and the specifics of the concern/complaint. You want to ensure confidentially as much as you possibly can. Retaliation and backlash concerns become all the more significant if the accuser and the specific claim was disclosed to the accused.

As such, you are not required to tell the accuser about the specific outcomes of the investigation nor the specific action that was taken, only that an investigation was conducted, and the appropriate action was taken.


Q:  If any person who makes a complaint, is a witness, is the accused, etc. during an investigation does go back to their work area or even outside of work and discusses the case, questions asked, their responses with other potential witnesses… can the employer discipline them or should we at least make them aware that their activity has been reported and give them a verbal warning. I feel that by that time they may have already contaminated other witnesses and even caused further disruption to operations.
 

A: You want to ensure you are opening your investigation interviews with the statement on confidentiality and the consequence if confidentiality is breached.

If you’re concerned about confidentiality, you may want to place the people involved on a paid administrative leave until your investigation is completed. If an employee is being placed on administrative leave, you want to be sure you communicate the expectation for confidentiality and communication with coworkers while on leave.

If an employee does speak to coworkers or other witnesses, you want to be sure to take prompt and immediate disciplinary action which could include termination.

This is just a taste of the helpful information being shared at KPA’s webinars. Register for an upcoming session today.

 

Alert: Updated FMLA Forms

Based on requirements for the Paperwork Reduction Act, the Department of Labor sends their FMLA forms to Office of Management and Budget (OMB) every three years for an audit. The OMB is filing 30-day extensions for these FMLA updates and we could see more in the coming months as they continue their review.

• FMLA Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

• FMLA Certification for Serious Injury or Illness of Current Servicemember for Military Family Leave

• FMLA Certification of Health Care Provider for Employee’s Serious Health Condition

• FMLA Certification of Health Care Provider for Family Member’s Serious Health Condition

• FMLA Designation Notice

• FMLA Certification of Qualifying Exigency for Military Family Leave

• FMLA Notice of Eligibility and Rights and Responsibilities

Next Steps:

Ensure you perform updates to your files for these forms and stay tuned for more updates from the OMB after June 30, 2018.

 

 

Better Managers, Better Employees

How do managers get the best results through our people?

What kind of manager do you want to be?

Read about 4 game-changing management tips that will improve your workplace and your team’s results.

Question:
One of our employees interviewed a candidate today and emailed me afterwards. He was impressed by the candidate, but grew concerned after the candidate mentioned having social anxiety. He wondered whether the anxiety could affect the candidate’s ability to do the job. I reminded the employee that we’re an Equal Opportunity Employer and we don’t discriminate on any basis prohibited by law, including disability. Instead, we select candidates based on skill and qualification. Is there anything else that I should have done?
Answer from Margaret, PHR, SHRM-CP:
 
You are correct to focus on skills and qualifications during the interview process. As you noted, employees are protected from discrimination based on having a disability. This also includes having a record of a disability or simply being perceived as disabled.

It’s important not to make assumptions about a candidate’s ability to perform their job based on their having disclosed that they have a disability or other health condition. An employer can ask all candidates if they are able to perform the job either with or without accommodation; as a best practice, however, we recommend asking this on the written application rather than during the interview. If a candidate at the post-offer stage requests an accommodation to perform the essential functions of their job, then you would engage them in the interactive process to determine whether you could provide an accommodation.

In the future, you should counsel employees who conduct interviews not to solicit or document information that a candidate discloses regarding their inclusions in any protected class (e.g. disability, sexual orientation, national origin). This will help you avoid the appearance that such information was a factor in the employment decision.

For the current situation, I would recommend just continuing to focus on the skills and qualifications of the candidates that you have. If you do choose another candidate, you should able to justify the decision based on those comparative skills and qualifications and be able to show that the chosen candidate was truly a better fit.

 
Margaret holds a Bachelor of Arts degree in Psychology from Portland State University and a Professional Certificate in Human Resources Management. She has worked in a variety of HR roles in a multi-state capacity. Margaret regularly attends seminars and other continuing education courses to stay current with new developments and changes that affect the workplace and is active in local and national Human Resources organizations.
Question:
We’ve been approached by some local college students who are volunteering to be unpaid interns. Can we bring them on without paying them?
Answer from Sarah, PHR, SHRM-CP:
 
According to the U.S. Department of Labor, there are certain requirements that must be met when taking on unpaid interns. These requirements are intended to ensure that the intern is receiving a valuable learning experience rather than providing free labor. Be aware that workers cannot waive their right to be paid, even if they are begging to work for free to gain experience. Unless all the following criteria are met, the intern is an employee who must be paid the minimum wage and overtime, and receive all of the other protections guaranteed by federal and relevant state wage laws. 

The Department of Labor uses the following six criteria to determine if someone is an unpaid intern:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment
  • The internship experience is for the benefit of the intern
  • The intern does not displace regular employees, but works under close supervision of existing staff; 
  • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded; 
  • The intern is not necessarily entitled to a job at the end of the internship; and 
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist under the Fair Labor Standards Act (FLSA), and the Act’s minimum wage and overtime provisions do not apply to the intern. However, if the employer does not correctly classify the intern, then unpaid wages, penalties, and tax issues could result. It is also important to note that a number of workplace protections (such as the ADA) apply to interns and employees alike.
  
And as is true when classifying any worker as a non-employee, you’ll want to check state law for additional requirements. California, for instance, requires that the application process be different than it is for employees, that the internship be clearly advertised as educational rather than geared toward future employment, that the training is part of an educational curriculum (rather than just similar to one), that the training not be overly-specific to the employer, and that the intern receive no employee benefits.

 
Sarah has extensive Human Resources experience in the legal, software, security and property preservation industries. She has a Business Communications degree from Villa Julie College (now Stevenson University) and a master’s certificate in Human Resources Management and a Strategic Organizational Leadership certification from Villa Nova University. Sarah is also a member of the National Society of Human Resources Management and has managed the HR function for small startup companies to mid-sized/large organizations.
Question:
If an employee puts in their notice, can we let them go that day instead of keeping them for the full notice period?
Answer from Celine, SHRM-CP:
 
Unless there is a contract or agreement to the contrary, employers are under no obligation to keep an employee on during their resignation notice period or to provide them with compensation for the duration of that period. However, there are a couple of issues to consider before accepting an employee’s resignation early. 

First, if you ask the employee not to work the remainder of the notice period and do not pay them for that time, the resignation may become an involuntary termination in the eyes of the state’s unemployment insurance department. Note that the effect of a single claim on your UI tax rate is likely to be small to non-existent. However, if you’re concerned about that, you can pay the employee for the full notice period, but ask them not to come into work. 

Second, terminating the employee before their resignation period comes to an end could motivate other employees to forego giving adequate notice in the event they resign. By terminating an employee immediately, rather than letting them earn two more weeks of pay, you’re effectively telling other employees that you don’t honor notice periods. As a result, they may not see the point in giving you that courtesy. 

Ultimately, the choice to terminate early – with or without pay – is up to your discretion. There are certainly good reasons to ask an employee not to return to the office once they have offered you notice. Just keep in mind that there may be other reasons to go ahead and pay them for their notice period, even if you don’t want them to continue to work. 

 
With eight years of customer service experience under her belt, Céline is proud to bring her healthcare and food service expertise to the team. She’s fluent in French and proficient in Spanish, making her nearly trilingual. Céline serves on the board of a non-profit that organizes a citywide music festival. She loves spending her time exploring the outdoors, playing with her nieces and nephews, and cooking.
Question:
How do we calculate whether we’re covered under FMLA?
Answer from Margaret, PHR, SHRM-CP:
 
To be covered under FMLA, private sector employers need to employ 50 or more employees for at least 20 calendar workweeks in the current or preceding calendar year. The 20 calendar workweeks do not need to be consecutive. 

When counting your employees, you would include any employee whose name appears on your payroll any working day of calendar week, regardless of whether they received compensation for the week. 

Once your organization meets the 50 employees-for-20 workweeks threshold, it remains covered until it reaches a point at which it no longer employed 50 employees for 20 (non-consecutive) workweeks in the current and preceding calendar year.

 
Margaret holds a Bachelor of Arts degree in Psychology from Portland State University and a Professional Certificate in Human Resources Management. She has worked in a variety of HR roles in a multi-state capacity. Margaret regularly attends seminars and other continuing education courses to stay current with new developments and changes that affect the workplace and is active in local and national Human Resources organizations.
Question:
We have good reason to suspect an employee has been stealing from the register. How should we respond?
Answer from Angela, PHR:
 
I would recommend suspending this employee and conducting an internal investigation. You may also want to report the theft to law enforcement depending on the circumstances.

An internal investigation generally includes interviewing any employee who may be involved and any potential witnesses about what they saw . You’re looking for firsthand knowledge, not rumors or speculation. If you have video surveillance, it should be included in your investigation file. Even if the accused employee fails to cooperate, you should still investigate as best you can and document your good faith efforts.

During the interviews, ask the employees for general information about what they know or what they saw. Formulating questions in advance helps ensure that your investigation remains unbiased and open-ended. When interviewing co-workers, be sure not to disclose which employee you suspect of stealing. 

These interviews should be confidential to the extent reasonable and conducted in a discreet manner. It’s also good to have a manager or HR Representative in the interviews to serve as a third-party witness and take detailed notes. This documentation may prove helpful if the company is ever challenged regarding this situation and its outcome. 

If the results of the investigation reveal that an employee did in fact engage in theft, you may opt to terminate the employee. 

 
Angela has extensive experience in HR, conflict management and employee relations. She spent several years working as a high volume (and full cycle) recruiter for a large multi-channel retailer. Angela earned her B.A. in English Literature and Criminology from the University of South Florida. and also holds a paralegal certification from Saint Petersburg College.
Question:
Some managers have been continually talking about politics in the office, not taking into consideration anyone else’s political backgrounds and beliefs. It gets offensive at times, but employees are afraid to say anything. Any advice on how this can be handled?
Answer from Emily, PHR:
 
In general, a private employer can limit political expression in the workplace—provided they don’t run afoul of protected Section 7 rights or applicable state laws. Section 7 of the National Labor Relations Act gives non-supervisory employees the right to talk about the terms and conditions of their employment and the right to unionize. While this law protects some political activities, it doesn’t give employees the right to discuss politics that aren’t work-related during work hours. You therefore can limit political speech and associated conduct that is not work-related.

As a rule, it is important to focus on workplace behavior and not on limiting the beliefs or off-work activities of employees. I recommend having a policy that focuses on job performance rather than political discussions specifically. If an employee spends too much time engaged in “extra office chat,” regardless of the topic, I’d presume that they are not performing their position to your expectations, or that they may be significantly distracting their co-workers. 

As for how to specifically deal with this situation, I would recommend meeting privately with the managers involved and discussing with them how their comments are affecting the team. I would make it clear that you’re in no way interested in limiting their political actions outside of work, but that it’s important in the office to consider diverse views. Managers are held to a higher standard and should not be saying things that make subordinates feel uncomfortable.

 
Emily joins the team with over six years of experience in HR, primarily in the healthcare and hospitality industries. She also spent a year running a non-profit. She graduated college with degrees in Music and Entrepreneurial Business, and her passion for helping and working alongside people led her to the field of HR. In her free time, Emily enjoys traveling and home brewing with her husband.
Question:
We have an employee claiming they shouldn’t be classified as exempt from overtime. If it turns out they’re right, what are the penalties for misclassification?
Answer from Kara, JD, SPHR:
 
The cost of misclassification will depend on several factors, such as how many employees are misclassified, how much extra money they would have been paid if properly classified, how the misclassification is discovered, and how your employees react to it. 

Generally, if an employee goes to the federal Department of Labor and says they have been misclassified, the DOL will investigate, and they will very likely look at all your employee classifications. Any employee who the DOL determines should have been paid overtime in the last two years will be found to have been underpaid, and the organization will owe that money to the employee now (or three years’ worth if the misclassification is found to be “willful”). The organization will also owe them liquidated damages equal to the amount of money owed. So, if an employee should have been paid $2,000 in overtime, the organization will owe them $4,000. The organization will also owe taxes on those wages and interest on those taxes. 

Additionally, many states have their own overtime laws, and in most cases the organization can be held liable under both federal and state law, meaning not only would the employee be owed double under the FLSA, but also any liquidated damages under state law (which could easily triple the original amount). And if you are in a state with late payment penalties, you could owe up to 30 days’ worth of the employee’s pay on top of the already discussed damages. There’s also a very good chance that the organization will be held liable for any related attorney’s fees – both your own and the employee’s.

Finally, there are potential federal civil penalties of $1,894 per violation (generally one penalty per misclassified employee), state penalties (which will vary), and in some cases the potential for jail time. As soon as judgment is rendered in favor of the employee, statutory interest will begin to accrue on the amount owed – generally 10% per year.

The costs associated with misclassification are steep. But we can help! The HR Support Center is chock full of guides and trainings that can help you ensure that all your employees are properly classified. Start by checking out our 2-Minute HR Trainings on the White Collar Exemptions, which are the most widely used among our clientele.

 
Kara practiced employment and bankruptcy law for five years before joining us, and was a Human Resources Generalist at an architecture and engineering firm for several years prior to that. As an attorney she worked on many wage and hour and discrimination claims in both state and federal court. She holds a Bachelor of Arts degree from Oregon State University and earned her law degree from Lewis and Clark Law School.
Question:

We want to terminate an employee who doesn’t fit with our culture. Can we do this? Do you foresee any issues?

Answer from Kyle, PHR:
 
First things first, check your policies and any correspondence (like an offer letter) that have been given to the employee to ensure that you have established an at-will employment relationship. Most employers state that employment is at-will, meaning an employee can be terminated at any time, with or without notice, and with or without cause, for any reason not prohibited by law. If an at-will employment relationship exists, you may terminate the employee for not fitting in with your culture, but there are certainly some things to consider beforehand.

Terminated employees sometimes challenge their employer’s decision to terminate them, alleging discrimination or some other unlawful employment practice. Your best defense is to be able to provide documented reasons for every termination and demonstrate good-faith efforts on your end to help the employee improve. Simply saying the employee didn’t fit with your culture doesn’t provide much information or do anything to counter a claim that the termination was unlawful. 

Therefore, think about what you mean when you say the employee doesn’t fit with your culture. If your expectations are clearly established and you can point to specific behaviors of the employee that did not meet those expectations, you may have a solid case for termination. You should also be able to show that you gave the employee a chance to improve and that you would terminate any employee under the same circumstances. In other words, you should be able to demonstrate whether an employee fits with your culture and show that the consequences for not fitting with the culture are the same for everyone. Documentation is key. If you haven’t done these things, I would not recommend termination. 

 
Kyle joined us after six years of freelance writing and editing. He has worked with book publishers, educational institutions, magazines, news and opinion websites, successful business leaders, and non-profit organizations. His book, a memoir about grief and hope, was published by Loyola Press in 2013.