In our latest installment of Ask the Expert, brought to you by the team of industry experts at HR Hero®, we look at a recent question from a subscriber regarding disciplinary action in the workplace, company compliance, and what can be deemed as fair policy.
Q: We have a newly hired manager who is suspending staff like no tomorrow, often issuing verbal warnings and then promptly suspending the employees. Is this aggressive action considered compliant with employment laws?
A: The answer to your question depends heavily upon company policy. We will assume that the employees at issue are not terminated, but merely suspended either as a disciplinary measure or pending the outcome of an investigation into their conduct, pursuant to the employer’s written, established disciplinary policy.
We also assume that the employees are not covered by either a collective bargaining agreement or other employment contract that would determine the disciplinary process.
Starting With Progressive Discipline
Disciplinary policies and procedures generally include some type of progressive discipline that provides for increasingly serious penalties, up to and including termination, if an employee fails to correct his or her job performance or behavior.
Conduct is usually addressed by telling an employee what is expected in the future and then monitoring his or her behavior. Performance is addressed by telling the employee what is expected and then providing training or support that should enable the employee to improve his or her performance.
In both situations, the focus should be on giving the employee an opportunity to correct the situation. Employees who are able to improve performance and/or correct behavior save the employer from the time and expense of recruiting and training new employees.
Who the decision-makers are when and employee is suspended depends on the structure of the organization, the nature of the conduct under investigation, and the employee’s position in the organization. For harassment investigations, some employers prefer to use outside consultants or even attorneys with an expertise in the topic. For workplace violence, drug/alcohol offenses, and similar issues, the HR manager may be the key decision-maker.
However, if an upper-level employee is involved in the misconduct, a COO or even CEO may be involved. Further, if the incident began with a complaint from an employee, the decision-maker should appear to be a neutral party with no connection to the complaint.
Investigation is Key
An employer’s best course of action when dealing with a potential egregious policy violation is to conduct a thorough investigation regarding the employee’s activities before taking disciplinary action.
Investigations make sense whenever there are complaints of workplace problems, including rule or policy violations (such as violating the workplace violence, drug/alcohol, or harassment policies), misconduct (such as falsifying records or reports), or criminal acts (such as stealing). In addition, you also should be prepared to investigate lesser problems, even without a formal complaint, like rumors or suspicions of rule violations or wrongdoing.
Note that in the case of sexual and other harassment complaints protected by state and federal discrimination laws, you have a duty to conduct a thorough investigation, as well as remedy the harassment, or you could be liable for any harassment found by an agency or court.
An employer does not have to suspend an employee during an investigation, but it may make sense to do so if the conduct alleged is particularly egregious or if there is concern that the employee may continue the bad behavior at work or engage in sabotage or other similar activity. Whether the suspension should be paid or unpaid is discussed in the questions below.
Elements of an Investigation
One way to keep the goals of an investigative process in focus is to consider how your organization’s procedures and decisions might be viewed in an outside forum, such as a local newspaper article or court proceeding.
You should be confident that your investigative process and resulting decision would be considered fair if held up to public scrutiny.
To help prevent problems and ensure an effective investigation, the following six elements should be part of your investigative process:
1. Written procedures. The procedures are management’s opportunity to explain the investigative process and its purpose. Generally, the purpose of an investigation is to discover the facts necessary to make a decision about a particular employment issue. Thus, you should establish specific procedures to be followed by supervisors and managers who must conduct investigations. The written procedures should address each step of the process and provide guidelines for fact finding (including choosing and interviewing witnesses), proper documentation of the investigation steps and the facts revealed, protection of confidentiality, and communication of results.
2. A trained and objective investigator. The qualifications and demeanor of the person conducting the investigation will influence the perception of fairness. Ideally, the person should have special training and experience in human resources, employment law, and conflict resolution. Many employers rely on their internal HR professionals or security officers in this role. However, an outside investigator may be appropriate if the issues are particularly sensitive or legally complex. (Note that if you use an outside investigator, you may have to comply with certain disclosure requirements under the Fair Credit Reporting Act, as amended by the Fair and Accurate Credit Transactions Act of 2003.) In addition, some states, such as California, require that third-party investigators be licensed by the state.
3. A timely process. A commitment to complete the investigation in a timely manner reinforces the perception of fairness. Therefore, investigations should be completed as quickly as possible after a complaint is filed, the misconduct is observed, or the alleged incident occurs. Normally, no more than a few days should elapse between each step in the process; and ideally, the investigation should be completed within five to ten days. Of course, investigations that involve complicated issues like harassment or theft may take longer. In those cases, management can extend the time needed by placing the appropriate parties on special leave pending the outcome.
4. Careful fact-finding. The investigator should begin by gathering as many facts as possible about the problem, either by interviewing the complaining party, or if no one made a complaint, by interviewing people who may be involved or who may have witnessed the problem. As a general rule, the investigator should talk to any person who may have information that would either prove or disprove that the alleged conduct occurred.
To obtain as much detail as possible, the investigator should ask probing and open-ended questions that do not suggest the answer. Interviews should focus on the specific facts of what happened (like when, where, and who was involved) and preserve confidentiality by addressing only the details that the particular person would know. In addition, the tone of each interview should be professional, and everyone interviewed should be reminded that the organization will not retaliate, or tolerate retaliation, against anyone for participating in the investigation. Throughout the process, the investigator should be as impartial as possible and not comment on any aspect of the investigation. In addition, you should not promise complete confidentiality or anonymity, or that punishment will be less severe if the employee admits inappropriate behavior.
5. Documented results. All steps in the process should be recorded and documented in writing. Written records, properly compiled, aid everyone’s memory and can be invaluable in demonstrating to employees and, if necessary, to a court, the fairness of the investigation and ultimate decision. Since these records may be used in legal proceedings, the information recorded should be limited to facts disclosed and behavior observed and should not include any speculation about what happened.
6. Final decision and communication. Once the investigation is completed, management should evaluate the evidence and make a decision. Although most managers and human resources professionals worry about making the “perfect” decision, neither employees nor the courts expect legal perfection. Rather, they expect a rational decision based on a thorough investigation. In fact, courts generally do not second-guess employer actions, even when later proven wrong, if management acted fairly and in good faith. Therefore, you do not have to meet a strict rule of evidence “beyond a reasonable doubt,” as in a criminal offense, in order to make a proper employment decision.
As a last step, all appropriate parties should be informed of the decision. This communication can be used as an opportunity to underscore the fairness of the process. However, to prevent defamation claims, you should be careful to limit dissemination of the information to those who have a legitimate need to know.
Inconclusive Evidence
There may be times when the evidence is inconclusive and you cannot reach a determination. In these cases, you should not take action against either party. Placing blame where the truth cannot be determined may result in claims of wrongful discharge, defamation, infliction of emotional distress, or retaliation. Instead, you should explain to the parties why the evidence was inconclusive and give anyone involved the opportunity to submit additional information and appeal the decision. An appeals step lends additional fairness and impartiality to the process.
You should be aware, too, that according to the National Labor Relations Board (NLRB), nonsupervisory union employees are entitled to have a union representative present during an investigatory interview if it might lead to disciplinary action for that employee. (The NLRB gives “employees” the right to engage in certain protected concerted activity and the right to representation, but specifically excludes supervisors from this definition.) However, nonunion employees do not enjoy a right to representation during these interviews.
You should discuss these suspension issues with an attorney before taking any further action to ensure your company is compliant with all federal and state laws.
Your question would best be addressed with an attorney, particularly if you need advice for all 50 states. I will try to provide general insights on issues under federal law but strongly suggest that you consult with your attorney for detailed compliance.
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