Author: Daniel A. Lublin
The workplace should be concerned with work and not the “art of war”; however, in many ways, employment law disputes inevitably become a chess match, in which each side looks for the next fatal blow.
I’m often asked what I enjoy most about representing both employees and small businesses in workplace disputes, as this practice is commonly seen as an exception, not the rule. My response: by walking in my opponents’ shoes, I can anticipate their next move. To this end, and just as my column last week suggested how employees can evaluate whether an investigation into their alleged misconduct was full and fair, in my opinion, employers are well advised to the make the first move in the game of employment law chess.
As the law requires employers to prove that alleged misconduct actually occurred, those without cogent proof often lose what would otherwise be a clear-cut case. However, as much as an investigation may be required to prove, and win, the case, a number of other “skeletons” can often be found in employees’ closets, making a properly conducted investigation more valuable than just getting to “checkmate.” Therefore, for employers enlightened to potential employee misconduct, and having already decided to investigate, the following points should also be considered:
Use the investigation to discover information: Employees are legally required to respond truthfully to questions asked in an investigation. So, not only does a refusal to answer questions raise a positive inference that the alleged misconduct actually occurred, but a refusal itself can provide cause for discharge in certain situations. Similarly, answers that are determined as dishonest or misleading can be to the employee’s disadvantage, effectively limiting the need for the employer to even complete the investigation. Therefore, when I’m retained by small companies, I develop an outline of questions that they should ask at the investigation, considering the multitude of potential answers that could expose the employee, or others, to reveal facts justifying termination.
Don’t dismiss explanations: Many times, valid explanations are proffered that either justify or mitigate the employee’s conduct. However, in situations where the employee was reluctant to even admit the conduct complained about, an otherwise valid explanation would never have surfaced. With a valid explanation in place, the employer can choose not to terminate the employee and avoid negative consequences of a termination such as costly and protracted litigation, diminished employee moral, setting a negative precedent and, not least, employers can keep a contributing member of the team contributing.
Use the investigation to learn about condoned practices: If the alleged employee misconduct arises from practices that are common or condoned, the investigation should be used to learn about the practice and its corporate origins. Then, if desirable, the practice should be specifically and expressly outlawed or alternatively, policy manuals or other written materials should be amended confirming the commonality of the practice.
Reinforce discipline or faith in the system: Pavlovian theory applies to more than the dog pound. Workplaces that consistently investigate alleged misconduct reinforce their resolve and deter future misconduct from occurring in the first place. Likewise, consistently applying internal policies builds faith in the system and increases the likelihood that employees will report the misconduct of others.