ABA Section of Labor & Employment Law
2nd Annual CLE Conference
Denver, Colorado
September 12, 2008
How to Do it Right: Workplace Investigations
The Union/Employee Perspective
by Gary L. Bailey, Attorney
Illinois Fraternal Order of Police Labor Council
Investigations of alleged wrongdoing in the workplace are conducted by both
private and public sector employers. These investigations are performed by employers
(and investigators) with a variety of experience, ability and sophistication and cover a
wide spectrum of on-duty and off-duty conduct that employers deem harmful to their
particular interests.
Employers are constantly developing and implementing new techniques to
conduct their internal investigations. Evolving technological improvements, especially in
the area of electronics, have given employers new surveillance tools that were
previously available only to intelligence agencies (and prop-masters in Hollywood). As
a result, by way of hidden cameras, miniature microphones, tracking software, and GPS
devices, the sphere of employee privacy in the workplace has drastically shrunk. These
highly-intrusive measures, all of which invade the personal and intimate domain of
innocent workers, are instituted in furtherance of uncovering the misdeeds of those
workers who are suspected of malfeasance.
Most employees appreciate the legitimate interests employers have in operating
a safe workplace, free from employees who steal, deal drugs or commit other illegal
acts.
Moreover, employees have little interest in protecting co-wokers who are
irresponsible, undependable, untrustworthy and unreliable.
But the common desire
employees share with employers about working alongside those who are honest and
conscientious is tempered by the knowledge that many investigatory techniques can be
aimed at them in intrusive and humiliating ways.
Employees naturally find themselves skeptical and wary of employers’
assurances that “good workers” have nothing to fear.
Given the potential that the
ominous tools of “big brother” can be abused by zealous and inexperienced
investigators, employees want protections from unfounded and intrusive incursions into
their lives.
There are some existing legal safeguards for employees, but the most effective
protection available is one which employees rarely access. And there remains one tried
and true technique that is still the most pivotal tool in the investigator’s arsenal.
Legal Restrictions
There are numerous legal issues that internal investigators must be aware of
when performing their tasks. For example, there are state and federal statutes that
address the use of some tools that investigators consider. The Employee Polygraph
Protection Act, 2 USCA §1314, et seq., forbids many private employers from using a
polygraph as an investigatory tool. Most states have criminal eavesdropping statutes,
many of which prohibit the recording or interception of oral communications without the
permission of all parties to the conversation.
Some
state
assemblies
have
specifically
addressed
particular
internal
investigation methods. For example, in Illinois, the Uniform Peace Officers Disciplinary
Act, 725 ILCS 50, was enacted to impose restrictions on how, when and where public
employers may interrogate police officers. The statute also provides that officers may
bring an attorney to represent them at the questioning. Similar “Peace Officer Bill of
Rights” statutes have been adopted throughout the nation and some also cover fire
fighters and other public employees.
In addition to statutory enactments, federal courts have issued opinions that
impact internal investigations. In 1975, the United States Supreme Court ruled that,
under provisions of the National Labor Relations Act, an employee represented by a
union in the private sector may request the presence of a co-worker at an investigatory
interview if that employee reasonably believes the interview might result in disciplinary
action. In NLRB v. J. Weingarten, Inc., 420 US 251 (1975), the US Supreme Court
provided a significant protection to unionized employees from zealous employers
seeking to isolate an employee during questioning which could lead to his or her
termination.
The applicablility of Weingarten rights has expanded over the years. A divided
National Labor Relations Board has extended Weingarten rights to employees in nonunion workplaces. Epilepsy Foundation of N.E. Ohio, 331 NLRB 676, 164 LRRM 1233
(2000). Additionally, many states with public sector collective bargaining statutes have
incorporated Weingarten rights into their legislative schemes so that public employees
enjoy similar protections when they are being interrogated.
The United States Supreme Court has also ruled that if public employees are
ordered by their employers to answer questions (under threat of discipline if they
refuse), their testimony is compelled and therefore their statement (and the fruits of their
statement) cannot be used against them in any subsequent criminal proceeding.
Garrity v. State of New Jersey, 385 US 493 (1967). Thus, unless a public employer
advises an employee that his or her statments will not be used in a criminal prosecution,
a public employer cannot effectively discipline its employee for refusing to answer its
questions.
These are just some of the safeguards in existence. Employees seeking relief
against investigatory techniques have these and other legal remedies to provide them
some protection. But what is the best way for employees to protect themselves against
invasions of their privacy implemented under the authority of investigating workplace
improprieties?
That’s simple: unionize the workforce, negotiate the protections and reduce the
results of those negotitations into a collective bargaining agreement containing a final
and binding arbitration provision.
The Most Effective Protection
Each workplace is governed by distinctly different rules and rulers. Statutory
protections and court opinions can provide some basic safeguards, but only on a broad
basis.
Employees subjected to electronic surveillance on their computers at one
workplace may not have concerns over drug testing. Employees subjected to video
cameras at one workplace may not have concerns over GPS tracking.
Understandably, the most effective manner by which employees can restrict the
methods internal investigators utilize at their particular workplace is to access the power
inherent in collective bargaining to directly address the accepted use of those methods
at the workplace. Collective bargaining not only provides the ability to confront the
issues but to enforce the agreement reached in an effective and efficient manner.
The National Labor Relations Board has ruled that the right to use hidden
surveillance techniques is a mandatory subject of bargaining. Colgate-Palmolive Co.,
323 NLRB 515 (1997). Thus, employees at a unionized workplace may engage in
bargaining over the use of these intrusive tools. With the commencement of bargaining
and the exchange of proposals, employees are on notice that their movements and
actions may be under scrutiny. The very discussion over the use of hidden surveillance
tools can impact the behavior of employees, who will be aware of the introduction of this
investigatory tool at their workplace. The commision of (and thus the detection of)
misconduct may be significantly reduced by just the comencement of negotiations.
The subject of using hidden surveillance tools provides for a variety of topics
which bargaining may address. Unions can make proposals over whether concealed
cameras may ever be used. Unions can make proposals over the type of conduct that
such tools are intended to observe. Unions can make proposals over the locations
where such tools may be employed. Interestingly, such negotiations may influence
employers to replace the idea of using hidden surveillance techiniques altogether in
favor of other investigatory methods.
During the negotiation of a union contract, employees can address other
investigatory methods, such as drug and alcohol testing, GPS tracking and, an
increasingly common concern at the workplace, Internet and e-mail use surveillance.
The customary use of e-mails and unrestricted access to the Internet at the workplace
have made these issues a frequent topic of concern among all employees, and thus a
frequent subject of bargaining.
Just as significant, a union contract usually provides employees with a “just
cause” standard for discipline and a grievance procedure ending in final and binding
arbitration before a professional neutral.
Thus, employees are protected against
overreaching disciplinary or termination charges based on intrusive investigatory
techiniques. Arbtrators will normally examine whether the employer’s investigation was
conducted fairly and objectively in determining whether the employer has met its burden
of proving “just cause” for discipline.
As a result, employees concerned over the implementation of intrusive internal
investigatory techiniques should have the opportunity to obtain significant protections by
simply unionizing and accessing the benefits inherent with collective bargaining.
The Most Important Tool
There are many methods that investigators may employ to conduct their internal
inquiries.
Yet there is one tool that still provides maximum value for its cost: the
interrogation. Electronic equipment can malfunction. Videos can be grainy. Drug tests
can reveal different results. But an effective interrogation can produce advantageous
results beyond the words and statements gathered.
The following observations have been made regarding the art of interrogation:
“Them that asks no questions isn’t told a lie.” from a A Smuggler’s
Song, by Rudyard Kipling (1865-1936).
“Questioning is not the mode of conversation among gentlemen.”
by Samuel Johnson (1709-1784).
These comments are clever, but they highlight the usefulness and the character of the
interrogation as an investigatory tool.
The interrogation provides an employer the optimal opportunity in the
investigation to get the employee’s side of the story.
This opportunity cannot be
trivialized. Through the interrogation, the employer can eliminate or identify potential
employee defenses.
The employer can derive a confession, thereby obviating the
necessity for further investigation.
Employees (whether guilty or innocent) are often anxious to give their side of the
story. Employees who want their employer to believe them invite the opportunity to
answer questions in the hope that the issue causing the investigation will be explained
and no further inquireies will be needed. In some cases, the employee’s explanation
does just that and the cost of further inquiries can be prevented.
The interrogation provides the person questioned the opportunity to confront and
to describe the “truth” of pivotal facts. The burden on the employer to identify the
credibility of witnesses is a difficult task, but a skillful interrogator can quickly examine
the answers given to particular questions and immediately challenge someone who
provides suspicious replies.
Employees trying to fool an employer are put to a stern test when they are
interrogated. Rehearsed lies can fool people, but those manufactured on the spur of
the moment are less likely to avoid detection. In cases where an employee is deceiving
the employer, an interrogation can quickly unravel even the most intricate lie.
The interrogation is an unnatural confrontation for the person being questioned.
The interrogator has a purpose and a direction that the person being questioned can
only guess. The interrogator has the upper hand but often the person being questioned
is convinced that an interrogation is a reciprocal exchange. The result of this mistaken
estimation can be disastrous for the employee.
In harrassment cases, the interrogation may be the most significant tool available
to the employer in its investigation. In such cases, the employer is forced into delving
into delicate subjects of such an intimate and personal nature, that many people find
themselves too embarrassed and humiliated to offer accurate details of what they
witnessed.
Yet, an inability or hesitancy to describe the relevant events has a pivotal impact
on the success of a case. Through questioning, an employer will have a keen insight
into the credibility, demeanor, courage and shrewdness of a witness, a complainant and
the incriminated. Every litigator can repeat stories of how their meritorious case was
jepoardized not by the lack of credible witnesses, but by the lack of cogent and
convincing witnesses.
Through the use of interrogations, employers can do more than obtain
information. Interrogations provide employers an investigatory tool with these and other
collateral advantages that electronic survillance tools do not offer. The interrogation
remains the greatest tool in the employer’s investigation arsenal.