Employee termination for illegal or unethical conduct require an investigation

by on May 28, 2009 · 0 Comment POSTED IN: HR Info Center

The core of an employee termination investigation is the notes and findings

Before you fire an employee for illegal or unethical conduct, you’re going to need to investigate the allegations of the illegal or unethical conduct.

If you do an investigation and you determine in good faith that the alleged conduct took place, you then need to determine how you’re going to proceed. At this point, it’s again, important to think about if the issue has come up before with an employee termination, and how it’s been handled. And you’ll have to determine the appropriate form of discipline, whether that means an employee termination or whatever your policy states. You’re going to want to document that in a memo to the wrong doer.

Investigation findings
Now, under certain circumstances depending on what the infraction is, it may take your company a period of time to really fully investigate a particular situation. An employer may suspend an employee pending that investigation. Then if the investigation reveals sufficient evidence, the company may decide on employee termination.

However, if it goes the other way and the investigation doesn’t provide sufficient evidence to fire the employee, then that employee may be reinstated. You might also have a situation where you’ve done an investigation it will show that there was an infraction or violation of policy, but it’s insufficient for you to fire the employee. It’ll go in some other kind of disciplinary action. So, all of that should be factored into your investigation documentation.

Note taking in an employee termination investigation

Part of that in the documentation is going to involve note-taking because the documentation of an employee termination investigation serves two purposes. It will help avoid confusion or misunderstanding about what people are alleging or denying or saying during an investigation. Ultimately, it will also help your company defend your decision to fire that employee if it’s ever challenged in court.

Taping interviews becomes a problem in an employee termination investigation.

First is the issue of consent. Although, there are some state laws that require one party consent to taping. In other words, if you yourself who’s doing the taping consent to the taping, then that’s good enough. Other states require the consent of both parties. Creating a tape recording also may cause confidentiality problems even if you get over the consent issue because if the interviewee actually wants a copy of that tape, once they’ve got a copy of that tape, you no longer have any control over who hears it or where it goes.

So, assuming you’re not taping, you will take notes. They should include facts. They should not include your conclusions. You want what people said, what people did, what people saw, what people heard. You don’t want to assume, you don’t want to guess.

When your investigation is done, you stamp a written record that would answer three questions by anyone who is not personally involved in the investigation. What did you do to investigate when the matter was brought to your attention? What did you conclude actually happened? Why is that conclusion reasonable?

To answer those questions, you’re going to have a final investigation file that includes all the documents you need but only those documents that you need to justify your decision to fire an employee, or whatever action you decided to take.

Edited remarks from the Rapid Learning Institute webinar: Effective Termination Techniques-How to Document Terminations (So You Don’t Lose a Lawsuit) by Alyssa Senzel from June 6, 2007

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