If you find yourself the subject of a workplace investigation, whether they concern allegations of misconduct, harassment, or discrimination, it can be difficult to know how to handle yourself. Should you answer questions? Are you require to give access to your phone or email? Do you have the right to know exactly what your accuser said about you? It's essential for employees to understand their rights in these situations to ensure they are treated fairly and justly.
What is a Workplace Investigation?
A workplace investigation is when a company formally investigates whether there was a policy or legal violation in the workplace, typically based on an allegation by an employee concerning the actions of a co-worker, supervisor or conditions at the workplace. It may also involve a workplace injury. The investigation will involve speaking to witnesses, looking at relevant documentation, and anything else that will help the company understand what happened and what do they need to do about it.
Sometimes the investigation will be short and only involve a discrete inquiry. Other times, the investigation will be lengthy and involve investigating multiple issues.
Common Types of Workplace Investigations
Sexual Harassment
Sexual harassment can occur when a supervisor tries to pressure a lower level employee to exchange sex or sexual favors for promotions or keeping their job. Another kind of sexual harassment occurs when an employee repeatedly makes improper comments of a sexual nature and in such a way that it is “severe and pervasive,” which meets the legal standard for sexual harassment.
Workplace Violence, Bullying and Threats
Workplace violence can occur between two employees, between a supervisor and an employee, or an employee and a member of the public or a third-party such as a contractor. Workplace violence can involve an assault which could also have criminal implications for the attacker, or it could involve threats, harassment, or stalking.
Fraud, Theft or Embezzlement
Owners, employees and even vendors can find themselves the target of financial misconduct. It could be as simple as theft of cash from the register, inventory or food. It can also involve theft of company trade secrets and confidential information.
Social Media Disparagement, Defamation or Harassment
Unfortunately, some employees and affiliates of your organization may use social media in an irresponsible or illegal way. Examples of wrongful behavior include spreading false statements about the organization, disparaging the organization, or using social media to harass co-workers.
Safety/OSHA
When someone is injured or killed, these events can result in governmental investigations of the circumstances of the even as well as other conditions in the workplace that violate the law. Sometimes employees report workplace conditions before injuries happen that result in governmental agency investigations.
General misconduct
Many workplace investigations stem from allegations of general misconduct, or bad behavior. Behaviors such as yelling, making threats, rudeness, absenteeism, tardiness, gossiping, or substance abuse can lead to a workplace investigation to determine what occurred, and what disciplinary measures need to take place.
Generally, a company’s code of conduct or employee handbook will have examples of general misconduct that can lead to discipline or termination, and before taking these steps, sometimes it is necessary to conduct an investigation.
Pennsylvania is an Employment-at-Will State
It’s important to understand, in the context of workplace investigations, that in many instances your employment can be terminated even if the accusations against you are entirely untrue. If you think that’s unfair, you’re not wrong but fair and the law are sometimes distant cousins. That’s largely because most workers in Pennsylvania are “at will” employees.
If an employee does not enter into a specific written contract with the employer, the employee is deemed to be an “at-will” employee. This means that neither worker or employer is bound to one another and each is free to end the relationship, or change the terms of the relationship, at any time, for any reason (or no reason). As long as the employer does not violate any state or federal law, and does not unlawfully discriminate against the employee, the employer is free to fire, demote, or change the terms of the employment situation (including reducing hours or pay) with the employee, without explanation or reason. Similarly, the employee can simply decide that they do not want to work for the employer any longer and they can sever ties at any time without explanation or advanced notice.
Your Rights as a Target of an Investigation
If you are the target of a workplace investigation, the law does not provide you with a right to “due process” like there would be in a court of law. If an employer engages in a faulty or negligent investigation, there is no right to sue. However, you are not entirely without rights in this context. Employers are required to conduct investigations under certain circumstances to protect themselves from liability. Certain rules about investigations have been developed as a result of litigation over these investigations.
1. Right to Be Informed
One of the fundamental rights employees have during a workplace investigation is the right to be informed of the nature of the investigation. This includes understanding the allegations or issues being investigated and, where appropriate, the process that will be followed. You should ask about these things before responding to any allegations against you or participating in the investigation. Employers are generally required to provide employees with enough context to prepare for an interview or inquiry, while balancing the need to maintain confidentiality for all parties involved.
2. Right to Privacy
Pennsylvania recognizes the tort of invasion of privacy. However, it can be difficult in a workplace setting to discern the scope of information over which the worker has a legitimate expectation of privacy. Typically, workers should not consider their desks, work computers or office space as their private property. Employers can view anything a worker did while using company computers, email systems and phones. However, employers cannot record phone conversations without the workers knowledge. Employers can also search an employee’s personal items, such as lunch boxes and other bags when the search is related to a legitimate business purpose (such as theft prevention). You cannot be forced to take a polygraph test – it is unlawful for an employer to both request it or terminate any employee for refusing one. However you can be required to submit to a drug or urine test. The manner in which these tests are conducted do have certain privacy restrictions.
3. Right to Participate
Employees have the right to participate in the investigation process. This typically means that you should have an opportunity to provide your side of the story. Whether you are a complainant, a witness, or the subject of the investigation, you should be allowed to share your account, present relevant evidence, and identify potential witnesses. If you are being interviewed and the interviewer is taking notes, you should ask about the interviewer’s role in the investigation and ask to review their notes prior to the conclusion of the interview. Point out any inaccuracies in the interviewer’s notes and ask that they be corrected. The interview cannot be recorded on a device without your consent. You can condition your consent on your employer’s agreement to provide you with a copy of the recording. You also have the right NOT to participate in most instances (with the exception of some governmental investigations). In situations where a potential crime has been committed, it may be wise to remain silent.
4. Right to Respect and Dignity
Throughout the investigation, every employee has the right to be treated with respect and dignity. Investigations can be stressful, and it is crucial for employers to conduct them in a professional manner. Employees should never be subjected to harassment, intimidation, or retaliation for their involvement in the investigation process.
5. Right to Confidentiality
There are a wide variety of laws that require employers to protect certain employee information, such as personal identifiable information, health information, mental health information and results of drug or alcohol tests. To the extent possible, employees have a right to confidentiality during workplace investigations This means that the details of the investigation and its outcome should be kept private, only disclosed to those who need to know for purposes related to the investigation. Before participating in an investigation, you should ask about the extent to which the results of the investigation will be kept confidential. Employees should be aware, however, that complete confidentiality may not always be possible, especially for reports that involve criminal activity or other regulatory requirements.
6. Right to Be Free from Retaliation
One of the most critical rights employees have during and after a workplace investigation is the right to be free from retaliation. Participating in a workplace investigation is a protected activity under the law. Retaliation can take many forms, such as adverse job actions, harassment, or discrimination, and is illegal under both federal and Pennsylvania state law. If you believe you are facing retaliation for participating in an investigation or raising a complaint, it is essential to document your experiences and seek legal advice.
7. Right to Seek Support
Employees have the right to seek support during a workplace investigation. This could include consulting with a union representative, an attorney, or even an employee assistance program (EAP) if offered by the employer. Unless you’re in a union, you do not have the right to have a “witness” with you in an employer interview. Having support can be invaluable during this stressful time, helping you navigate the process and ensuring your rights are protected.
Participating in a workplace investigation can be challenging, but understanding your rights is the first step to ensuring you are treated fairly throughout the process. Remember that if you feel your rights are being violated, or if you have concerns about how an investigation is being handled, it may be beneficial to consult with an experienced employment law attorney at Fiffik Law Group.
Staying informed and proactive can make a significant difference in protecting yourself during a workplace investigation. If you have any specific questions or concerns regarding a workplace investigation in Pennsylvania, feel free to reach out for further guidance. Your rights matter, and you deserve to have them protected.