Employee Rights in Workplace Investigations

By Kimberly Kafafian

It’s usually not a matter of if, but rather when, you’ll receive a workplace complaint. In fact, over the last six months, my company has seen a significant uptick in requests to conduct workplace investigations. These investigations are typically prompted by an employee’s concern over the behaviors of others, such as harassment or discrimination. Investigations are also launched by a company due to a violation of company policies or laws, or other action that could affect workplace safety and security. As an unbiased third-party, a trained Monarch employee will review the complaint, and collect evidence and facts to determine if any actions are necessary, including termination. 

While conducting the investigation, we may interview employees and ask them to provide us with documentation such as emails, texts, or statements. We may also review records, logs, surveillance videos, etc. While our scope may be broad, we do not have free rein. Employees have rights, and we must adhere to them as we investigate.

Rights Employees Have During an HR Investigation

A workplace investigation is just that, an investigation. It is not a legal proceeding, so the right to due process does not apply. Although as part of their employment, employees are expected to cooperate with investigations, provide any documents or information requested, and be honest, they do have the following rights:

The Right to Decline to Answer Questions

Employees cannot be compelled to provide answers to questions. They may refuse to answer at any time. But invoking the right to not answer can have consequences. If the employee signed an employment contract that requires them to cooperate and answer questions, the employer can terminate the employee for not cooperating. Additionally, if the investigation is related to a criminal act, the employer can contact law enforcement who may continue the investigation themselves.

The Right to Refuse to Sign Something

Employees do not have to sign anything during a workplace investigation, even if they are asked to do so by their employer or the investigator. For example, the investigator may ask the employee to sign a document acknowledging their participation in the investigation and/or that they agree to cooperate. While the employer can ask them to do so, it cannot compel them to. They are free to refuse.

The Right to Privacy

Employers must respect an employee’s right to privacy. They cannot record phone calls or interviews in violation of state wiretapping laws or search through a cell phone without consent. Typically, some privacy rights are waived by signing an employee contract or handbook, which frequently provide employers access to review work emails, monitor computer usage, and search belongings brought onto the workplace. 

It is important to note that being a part of an investigation is a protected activity. When I conduct an investigation, I always review the following with the person I am speaking with: 

• Retaliation for making a report of misconduct or harassment is forbidden by the company.
• You must immediately advise either me or your human resources department of any perceived retaliation or of further incidents of misconduct or harassment.
• I need to inform you that all types of retaliation are forbidden, including: demoting, transferring, or dismissing you or any employee involved in this investigation.

Conducting a workplace investigation is best left to the professionals who understand the types of actions that can and cannot be taken. If you violate an employee’s rights, you open the organization up to a lawsuit. 

Need assistance with an investigation? Our HR team can help. Call to schedule a consultation.