Possible gray areas in your workplace investigation?

by on May 5, 2009 · 0 Comment POSTED IN: HR Info Center

Work investigations can creep into not too well defined areas.

Beware of polygraph tests
An accounting employee is suspected of sealing of $1000. Can they be polygraphed during a workplace investigation? It depends on the law in the jurisdiction. The federal statute does allow polygraph of employees during a workplace investigation of criminal activity and this could very well be that. Some states don’t so you have to be careful about where you are.

Can you terminate the employee for refusing to do so? No. Under federal or state laws, terminating somebody for refusing to take a polygraph typically is against the federal and state statute.

Okay. An employee complains that he’s being retaliated against because he testified during an employee complaint investigation of a coworker against their mutual supervisor. The coworker lost his court case. Should you investigate the allegation of retaliation?

It is tempting to say we really shouldn’t pay attention to this because after all he lost the case. But being the witness in a case whether or not the coworker wins or loses is protected activity. And if you don’t conduct a workplace investigation in this case, you run the risk of a claim the failure to investigate is a form of retaliation itself. You run the risk that they may be subjected to retaliation, that might have been deterred had you done the investigation in the first place. So here, go ahead and do it even if you have doubts.

Negative corporate image or anti-discrimination message
An at-will nonunion Caucasian employee comes to the work wearing a T-shirt with the legend company is unfair to minorities.

Should the company start a workplace investigation whether it is unfair to minorities? May the company tell the employee to go home with pay and change his shirt that is contrary to the dress code or is that retaliation and can a company terminate him if he refuses to do so?

This is intended to be a hard one. If in fact this company has a record of lawsuits alleging discrimination against minorities. If however, this is an employee who is kind of a notorious crank and there’s not a track record then maybe you don’t but you need at least to think about it and not just to immediately dismiss it.

You can tell them to go home with pay if it’s contrary to the dress code. Because you’re paying them, that likely is not retaliation. Consult with your lawyers before you terminate the employee because this could be protected legal conduct.

The final point is that these areas are somewhat nuanced. And you shouldn’t feel bad about having to consult with counsel along the way. You in fact should do so because sometimes answers are not really clear cut.

Leave a Reply


Request a Free Demo

We'd love to show you how this industry-leading training system can help you develop your team. Please fill out this quick form or give us a call at 877-792-2172 to schedule your one-on-one demo with a Rapid Learning Specialist.