When Allegations Arise: Legal Obligations for Investigating Staff Misconduct

Misconductby staff is an unfortunate reality. Employers must be prepared for allegationsof staff misconduct arising and what the next steps should be.

Employersthat do not investigate misconduct often lose any claims or lawsuits brought inresponse to the issue. Some situations that legally require employers toinvestigate involve job discrimination laws, health and safety laws, drug-freeworkplace laws, and background and credit checks. Each allegation of misconductis unique, and the type of investigation and actions required vary depending onthe type and severity of the misconduct.

Afterbecoming aware of potential misconduct, an employer is responsible forconducting an investigation and taking steps to address the issue and preventit from continuing. Such an investigation should take place soon after there isa complaint against an employee or the employer otherwise becomes aware ofpossible misconduct. Additionally, the investigation should be conducted by animpartial party who is knowledgeable about company policies and employment lawissues. A good internal party to conduct an investigation is a staff member inhuman resources, but sometimes outside help can be helpful or needed.

Duringany interviews surrounding the misconduct, it is helpful to take detailed notesor even record. If you or your team choose to record any interviews, it is goodpractice to be transparent about the recording, although that disclosure is notrequired under Texas law.

Once aninvestigation is completed, the employer should inform the complainant and thealleged subject of its determination and any action that will be taken inresponse to the findings. Depending on the type of misconduct, an employer maybe required to take intermediate steps to address the issue before a fullinvestigation is completed. However, employers should take intermediate stepswith caution so as to not violate any employee’s rights.

Animportant workplace practice that should be followed here is keeping a thoroughrecord of all complaints and investigations. If the misconduct winds up goingto court, keeping records as an employer will help show that the company tookappropriate steps in addressing any allegations of misconduct. Similarly, alack of documentation could expose an employer to liability, showing potentialindifference to misconduct, even if an investigation took place.

Lastly,it’s good to be prepared. Don’t wait until misconduct arises to determine howyour company will go about addressing the issue. Have a plan for what you andyour team should do in the event of investigating staff misconduct.

‍