Legal Insider: Workplace Employment Investigations

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Our law firm has represented both employees and employers in employment investigations. This article discusses some of the issues involved when an employer conducts an investigation in the workplace and also issues that employees should consider.

Employers conduct workplace investigations into employee complaints typically because they may face legal consequences if confronted with allegations that they do not investigate. For example, if an employee alleges sexual harassment, religious discrimination or race discrimination at work and the claims are not investigated, an employer can be more readily held liable should litigation later occur. The same type of investigation is necessary when dealing with claims of whistleblowing and other alleged inappropriate conduct at work.

Of note, Virginia has recently added a number of new pro-employee protection laws that will make workplace investigations more likely.

Typical Steps in a Workplace Investigation

In most employment investigations, it’s common for an employer to hire an outside law firm (or occasionally use internal counsel) to conduct an employment investigation. Other employers will begin the process with human resources personnel conducting the investigation.

Once an investigator is appointed, they will start their investigation. From the employer’s perspective, their ultimate goal is to minimize their liability. While an investigator may find an individual employee at fault, the investigator ultimately wants to find and document that no fault on the part of an employer occurred. They also want to document the fact that they seriously looked into the allegations at issue.

While these vary, the following steps usually take place in an employer investigation:

1. The investigator reviews the complaint and plans their investigation.
2. The investigator then interviews the complainant or complainants regarding the allegations.
3. The investigator interviews the employee or employees with knowledge of the issues in the complaint and allegations.
4. The investigator interviews the accused employee or employees.
5. The investigator conducts follow-up interviews of any witnesses as needed.
6. The investigator reviews any relevant documentation, emails or other evidence involving the complaint.
7. The investigator often concludes by issuing a final report with recommendations to an employer.
8. The investigator or employer human resources personnel, to varying degrees, informs the complainant and/or employees under investigation of the outcome of the investigation.

Employee Representation

Depending on the employer and circumstances, an employee may have the right to legal representation during the investigative process. We assist complainants during such investigations and also defend employees accused or under investigation in the workplace for alleged misconduct. It is highly recommended that both complainants and those under investigation have legal counsel.

Results of the Workplace Investigation

Once an employer’s investigation is over, the outcome can vary. A report might be prepared, along with recommendations on actions to be potentially taken.

The investigation can result in the termination or other discipline for an accused employee or employees. The investigation can also result in a complainant filing an Equal Employment Opportunity complaint against an employer. Finally, an investigation can also vindicate an accused employee. No matter the outcome, an employer must be careful in avoiding retaliation against a complaining employee, even when their complaint is found to not be sustained. Retaliation is quite common against complainants, and employers can be held liable for retaliation when this occurs.

Each investigation is different, and different employers vary significantly in how they handle workplace investigations. Complainants and other employees should be represented throughout the process.

Conclusion

If an employee needs assistance with an employment investigation or other issue, please contact our office at 703-668-0070, or visit our website to schedule a consultation. Please also visit and like us on Facebook or connect with us on Twitter.