Unveiling Employee Rights in Workplace Investigations: What You Should Know

For employers of all sizes, one of the most critical aspects of conducting a workplace investigation is respecting the rights of the employees involved. Not only is this critical for ensuring employees feel comfortable, but violating employees’ rights during workplace investigations can expose employers to litigation and liability.

What rights do you need to respect? What right does an employee have to insert themselves into the process, and when can an employee say, “No”? While this is an extremely broad and complicated subject, here is a brief introduction to what employers need to know:

Employee Privacy Rights

Employees are entitled to a certain amount of privacy in the workplace. Even if an employee is under investigation for harassment, stealing from the company, or any other form of misconduct, the employee is entitled to various privacy protections during the investigative process. Among other things, this means employers cannot search employees’ personal phones or other devices without consent, and cannot record employee conversations unless steps are taken to comply with various laws.

Employee Rights Under Employment Contracts

If an employee has an employment contract (including a collective bargaining agreement), the investigation must respect all rights granted under the contract. While individual employment contracts vary, some examples of rights commonly granted to employees during workplace investigations include:

• The right to be heard
• The right to have access to information about the investigation
• The right to have the investigation conducted by personnel who do not have a personal interest in the outcome
• The right to have the investigation kept confidential to the extent practicable
• The right to have the investigation conducted promptly

Again, these are just examples. When investigating an employee who has an employment contract, a key first step is to review the contract and determine what rights the employee has (and doesn’t have) during the investigative process.

Employee Rights Under Employer Policies and Procedures  

Regardless of whether an employee has an employment contract, an employee is also entitled to all rights provided pursuant to employer policies and procedures. It is common practice for these policies and procedures to address workplace investigations; and, in many cases, they grant rights similar to those discussed above.

Employee Rights to Challenge Adverse Employment Actions

If an employer takes adverse employment action as a result of a workplace investigation, an employee has the right to challenge adverse employment action through appropriate legal means. In some cases, this may mean going through administrative procedures and in others it may mean going to court. As a result, it is imperative that employers have confidence in both the process and the outcome of all workplace investigations, and that they seek guidance when necessary.

Speak with a Workplace Investigations Consultant at AR Group

If you need to know more about how to handle a workplace investigation, we invite you to get in touch. To speak with a senior consultant at AR Group, please call 720-452-3300 or request an appointment online today.