Viewpoint: The razor’s edge: Public agency concerns when conducting a workplace investigation

The two most-asked questions by public agencies relating to workplace investigations are:

• 1. When must an investigation be conducted? and
• 2. How is the investigation conducted?

Those are simple questions that can lead to liability and exposure to lawsuits if not answered correctly. Each investigation will be different and may require different investigative techniques. However, immediacy, consistency, thoroughness, impartiality and effective communication are the hallmarks of every well-planned investigation.

1. When must an investigation be conducted?

A public agency’s obligation to investigate improper workplace behavior is no different than a private corporation’s obligation. Simply, the duty to investigate is triggered once a public agency is put on notice of possible inappropriate or improper behavior. The duty to investigate can arise from direct employee complaints or any number of seemingly innocuous events, including employee venting, gossip, anonymous complaints, casual remarks, or even information gleaned from social networking sites, such as Facebook and employee blogs.

2. How is the investigation conducted?

Before conducting a workplace investigation, a public agency should clearly define who will conduct the investigation. Clearly defined roles will help avoid departmental, and perhaps political, rivalries and biases. Consider creating an investigation team from several departments to foster a collaborative working environment between departments. But, in all instances, investigators should strive for neutrality, objectivity and impartiality. In some public agencies, given political proclivities and alliances, that may be difficult to achieve. Always ask whether the public agency would want the chosen investigator to testify in deposition, at a hearing or at trial.

For the most part, public employees have property rights in their positions. Before any administrative action, review all labor agreements, memoranda of understanding, and any statutes governing employment. Employees under investigation, or simply who are witnesses, may have rights — known as Weingarten rights — to have a union or other representative present during any questioning. In some instances, as in the case of investigations concerning police officers, the employee may have rights against self incrimination under the Fifth Amendment. However, employees do not have the right to remain silent once immunity is granted from prosecution. A public agency’s failure to take those rights into consideration at the time of the investigation could damage subsequent legal action.

Public employees’ Fourth Amendment rights may also protect their property, desks, lockers and work areas. Searching those areas may violate the employee’s privacy rights. Before conducting searches, carefully review practices and policies relating to employee privacy.

Finally, at the conclusion of the investigation and before the imposition of any discipline, a public employee usually will be entitled to a due process hearing. The hearing will allow the employee to present evidence and witnesses to support his or her appeal of the disciplinary determination.

The above considerations must be taken into account before a public agency begins to conduct a workplace investigation. Failure to anticipate those issues will lead to potential exposure and call into question the integrity of the entire investigation. Once the investigation has lost credibility, a public agency’s next question very likely will be: how much?

What do you think? Tell us in the comment box below.

Louis Klein is a Los Angeles-based Of Counsel with the law firm Meyers Nave. He has conducted workplace investigations on behalf of employers and trains employers to conduct proper investigations. He can be reached at [email protected].