Investigate My Office Staff?

Notebook and lens conceptBy: Randy Goldberg, Esq.

Today’s workplace, like society has evolved into an extremely litigious environment that is plagued with legal duties and responsibilities that in years prior was never more than a passing thought.

Not only is much of the heartfelt bantering and jocularity between members of the work staff now forbidden, but now we have to investigate any and all allegations that may have resulted from what was thought to be innocent bantering.  This obligation to investigate encompasses not only the aforementioned jesting, but pretty much anything that is taking place in the office setting.  In the healthcare world, where compliance is taken to a dimension far greater that the average business setting, this duty to investigate is that much greater and involved.

There is only one thing worse than not conducting an internal investigation in your office when required.  That is conducting an investigation which is plagued with bias and which was conducted in an unfair manner.

I cannot stress the importance of conducting a complete, thorough, fair, unbiased investigation into any and all allegations of misconduct, breaches of your compliance protocols, and office policies and procedures.  This of course is in addition to the claims of discrimination, retaliation, failure to provide reasonable accommodations, claims of disparate treatment, threats of workplace violence, a hostile work environment, and anything else that could place the company into jeopardy.

An investigation can be as simple as speaking with a couple of employees and writing a memorandum to file, up to what appears to be an episode of CSI Miami.  The one thing that the entire range of investigations have in common is that they all must be fact driven and all conclusions are based on fact and the evidence.  There is no room or tolerance for speculation or conjecture.  To quote the famous, Sergeant Joe Friday from the 1960’s television drama, Dragnet, “the facts ma’am – just the facts.”  I know I am dating myself, but there is no better statement can be made about the proper core of an investigation.

Many employment cases end up in litigation or in front of the Equal Employment Opportunity Commission (“EEOC”), not because of what was originally alleged to have occurred, but because the employer failed to properly investigate the initial allegations and address their findings in a prudent, proper, fair, and timely manner.  I repeatedly preach that “99% of justification is proper documentation.”

No one is expecting you as the employer to be a Sherlock Holmes, but as an employer, once you directly or indirectly learn of an allegation of possible misconduct you are on notice and are expected to conduct a reasonable and fair investigation.  Like I noted earlier, your investigation may be simply asking your front desk staff and billing/coder to each send you an email about an argument that they had in the break room.  However, the allegations may require a more formal investigation, which would include the taking of formal statements, examination of documents, audit of an employee’s email records, examination of a patient’s records, and your then current Privacy Policy.

This is where you may need to bring in your expert back-ups.  As the iconic hard-nosed cop Dirty Harry says, “a man has to know his limitations.”  No truer words have ever been spoken and yet ignored by so many.  If your Human Resources Director is “SHRM”[1] certified, she/he can probably handle your simple and less formal investigations.  However, do not overlook the services that your legal advisor can provide you in this regard.

Remember, your employees’ conduct and behavior puts you on “notice” of a potential problem in the workplace, and the investigation puts you on “notice” what the problem is and what action you as the employer need to take to address the problem.  If you do not conduct a warranted investigation or if you conduct a haphazard investigation, the knowledge and ultimate responsibility of taking corrective action will be imputed to you.  In other words, you as the employer will be found to have known or should have known of the problems occurring in the workplace and you failed to take reasonable and appropriate corrective measures.  Consequently, the placement of the decimal point on any settlement check just moved at least one or two columns to the right.

The extensive litany of employer-employee cases demonstrates that the more efficient and proactive that the employer addresses issues that arise in the workplace, as uncomfortable as it may be, the less financial burdensome the resolution will be to the employer.  Not to mention the non-financial benefits, such as creating a work environment where employees know what is expected of them and what consequences await them if they waiver from that standard.  The intent here is not instilling fear or a hard-nosed approach in your workplace, but in today’s environment certain conduct is not acceptable and as the employer it is incumbent on you to address it and correct it; as the sanctity of the workplace must be preserved.

[1] SHRM is the acronym for the Society of Human Resources Management.  They are considered by many, myself included to be the premier HR certification body.

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