Employment lawyers spend our time representing the accuser or the company. We raise or defend against allegations of harassment, intimidation, workplace bullying and discriminatory treatment against supervisors and managers, giving rise to liability against the employer.
But how do you protect yourself if you are the accused? You are going to find yourself navigating a minefield, caught in between being an employee perceived as exposing the company to risk and being management who must be defended by the company.
In addition to having HR departments, many larger companies now have ethics hotlines and/or ombudsman as avenues for your direct reports to make complaints about you. These complaints can range from allegations that you have violated the NJ Law Against Discrimination, Title VII of the Civil Rights Act or the Conscientious Employee Protection Act (CEPA) or any number of other federal and state employment laws but can also focus on your management style. Often, these complaints may arise after you have delivered a performance improvement plan (PIP) to the complaining employee or after a contentious incident at work.
Generally, upon receiving a complaint, the company will conduct an investigation, either assigning it to an in house HR representative or retaining outside counsel or a third party investigator to look into the substance of the complaint. Some very large companies have in-house investigative teams which may be staffed with retired law enforcement officers.
When you speak with an outside investigator, their objective is to assess the level of risk to the company, not necessarily to protect you against the employee’s complaints. This is especially true when the outside investigator is an attorney. Always remember that the company is footing the bill for the investigation and that you are not the investigator’s client.
As an employee of the company, you must participate in the investigation as a part of the terms and conditions of your employment. This investigation may begin without any notice to you and in fact, the interview appointment may appear on your calendar without any description of what it relates to or who it is about. You may find that the investigator asks vague and general questions that seem unrelated to what you think the investigation is about. You might also find that you are being cut off when you try to provide a complete explanation on a certain topic. In some instances, you might find that the investigator uses tactics to keep you off balance and to even scare you about the implications of the issue being raised against you.
Here are some steps to take to prepare for the meeting (if you have adequate notice):
- Think about who and what this investigation may be about, considering any recent conflicts with team members, recent performance evaluations or negative reviews etc.;
- Check through emails, your notes and documents to refresh your recollections about the issues, especially if this complaint against you arises from a disgruntled employee to whom you gave a negative performance improvement plan;
- Retain legal counsel; in most cases, while your lawyer will not be permitted to participate in the interview or intervene on your behalf, you can prepare with counsel for the interview and the types of questions that will be asked of you;
- Your attorney will also be able to guide you on followup steps to take after the interview to make sure that you are protected; and finally,
- Your attorney will also be able to guide you through the separation process should the company decide to terminate your employment.
The Bottomline: This is one of those times when you need a lawyer. You need to be careful about what you say, how you say it and to whom you are saying it, and above all, to understand the legal implications of your statement.