The Difficulty With Texting Employees During A workplace Investigation

Workplace investigations may be initiated after the employer is accused of wrongful conduct, such as permitting unlawful harassment or discrimination. While an employer may want to reach out to various employees including the alleged victim, doing so can negatively impact the ongoing workplace investigations. Understanding the importance of objectivity while workplace investigations are underway may help the employer shield against potential liability.

Policies

Before any workplace investigation is commenced, there should be clear policies in place. These should include anti-harassment, non-discrimination and anti-retaliation policies. These policies may be included in employee handbooks. The policies should specify the type of prohibited conduct, list some examples of the prohibited conduct and lay out the procedure for reporting violations. Additionally, policies should indicate who is responsible for commencing workplace investigations and how these investigations will be conducted. Employers often take the extra step of having all employees sign a document stating that they have read and received a copy of the policies.

It is important for employees to receive ongoing training and education. Employers may provide annual training or training after certain issues arise that warrant additional education on the policies. When employees are aware of the policies and better educated on them, the number of violations may be reduced. Additionally, employees may be more likely to avail themselves of these policies, keeping the complaints internal rather than pursuing external litigation.

One important reason why having clear policies in place is important is that these policies may establish an affirmative defense if litigation ensues. If the employer has a relevant policy in place, the employee was aware of the policy and the employee failed to provide notice of the violation to the employer, the employer may be able to successfully argue that the employer was not provided with the opportunity to investigate or remedy the situation.

Responding to Violations

An employer may have a very formal process involved in workplace investigations. A trained human resources staff member or independent organization may be responsible for conducting workplace investigations. The formal process may be communicated in the workplace policies. The investigation may begin by interviewing the alleged victim. The employer may have a standardized form for the purpose of gathering information and conducting the initial interview. The investigator may gather information about the alleged misconduct, the approximate dates and times of reported incidences, the location of the incident, the individuals involved, any witnesses and other important information.

The investigator may then interview the alleged harasser. This individual should know of the claims that are made against him or her and to be afforded the opportunity to address them. The employer’s role is to remain objective during this process while also clarifying its legal responsibility in taking all allegations seriously and investigating them. The investigator may also interview any witnesses who may have seen what occurred. They may have relevant information to share with the investigator. During the workplace investigation, it is important for employers not to text victims or witnesses to avoid any claims that they are interfering with the investigation.

Texting Concerns

Of particular concern to employers is that any text message that they send or receive during the process may ultimately be subject to discovery requests. If the employer erases the messages, this may raise the inference that there was inappropriate content involved in the message. This may ultimately be construed in a negative fashion against the employer. The employer will not want to take action that may be considered as attempting to intimidate the victim or potential witness or taking other action that may be used as evidence against the employer.

Notes, memos, emails and even text messages may ultimately result in discovery requests from the plaintiff’s lawyer. The employer may be required to produce these messages during the discovery process. During the tension of investigation, messages may be misinterpreted or interpreted differently than an employer intended.  Employers that are concerned about how their text messages or other messages may be interpreted against them may contact an independent organization that aids in conducting workplace investigations. This organization may be able to provide insight into how a business can protect itself.  


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