What are employee rights in a workplace investigation?

As employees, you have rights during a workplace/human resources investigation. These can be especially strong if you are a public employee or have a collective bargaining agreement.

Regardless, your employer must follow company policies during the internal investigation, such as:

• providing you with notice and an opportunity to defend yourself, and
• access to all evidence used against you.

Your employer also cannot break the law while investigating you for wrongdoing. Therefore, you have legal protections against:

• retaliation,
• discrimination,
• wrongful termination, and
• harassment.

What are my employee rights under the employment contract?

The procedures for an internal workplace/HR investigation are often detailed in your employment contract or your employee handbook. These provisions vary by employer. However, they generally require that all workplace investigations:

• be performed promptly,
• give you an opportunity to be heard,
• forbid decision-makers from having a conflict of interest in the outcome,
• give you access to information or subject matter that is being used against you in the investigation,
• give you access to your personnel record upon request,
• give you access to reasonable accommodations for your disability (though your employer may request medical documentation), and
• protect you from termination or other disciplinary action if no evidence of wrongdoing is found.

Additional recommendations

You are advised to have your own attorney be with you during any interviews and look over any documents your employer asks you to provide. If you cannot have an attorney, request that a witness be present (though your employer may refuse this). The HR representative may say they are on your side, but they are not: They work for your employer.

Some employers also ask you to sign a document agreeing to participate and cooperate in your investigation, but you are not required to sign this. Have your attorney look it over before signing anything.

You can always request to see your “investigation record,” which includes any interview notes or other documents related to your case; however, your employer does not have to show you this record if they choose not to discipline you.

Ultimately, the terms of your contract determine your contractual rights during the internal investigation. Your employer has to comply with these rights and obligations. If your employer violates them, you may have legal recourse.

Do I have any legal rights during an internal investigation?

Yes, state and federal employment laws provide numerous legal rights to workers who are the target of a workplace investigation.

For example, your employer cannot take a negative employment action against you through an internal investigation because you:

• filed a discrimination claim or a harassment complaint,
• reported a violation of the law that is happening in the workplace, like fraud, to law enforcement,
• requested reasonable accommodations for a disability, or
• acted as a whistleblower.¹

If your employer violates any of these rights, you can often file a lawsuit against them. Though in some cases, simply meeting with HR and discussing your concerns can resolve the issue.

You also have a legal right to not participate in the investigation. However, if your employment contract requires you to cooperate and answer questions honestly, invoking this legal right often leads to termination.

While refusing to cooperate can stop a workplace investigation into potential criminal activity, your employer may forward its investigation report to law enforcement to continue the investigation process.

Are there any things that my employer is forbidden from doing?

During an internal investigation, employers cannot violate your privacy rights. If they do commit an invasion of privacy, it can lead to a lawsuit.

Some of the most common examples of employers violating your privacy rights during a workplace investigation are:

• searching through your personal phone without your consent,
• demanding your personal passwords and log-in information,
• demanding your confidential health records,
• recording phone calls or interviews in violation of your state’s wiretapping laws, or
• monitoring your workplace activity in ways that are not contemplated by the employment contract.

However, many employment contracts in the private sector look ahead to these situations and give employers wide latitude to monitor employees or search their belongings in the workplace. For example, employment contracts frequently:

• give employers the power to monitor your computer usage,
• provide access to your work email, and
• state that your belongings can be searched when brought to the worksite.

If your employer asks you to sign a confidentiality agreement, have an attorney look it over before deciding whether to sign. Even if you do sign it, there are situations where you may be able to break confidentiality – such as to report workplace harassment or discrimination.

The terms of an employment contract are generally more generous to employee privacy if you are subject to a collective bargaining agreement or a public employee. In these cases, it is often wise to talk to your union representative about the case or to get your own legal counsel.

What can trigger a workplace investigation?

Workplace investigations are generally triggered when your employer learns of potential workplace misconduct. That misconduct can be anything from:

• allegations of sexual harassment,
• claims of discriminatory conduct,
• reports that you are contributing to a hostile work environment,
• signs that you are defrauding the company, or
• indications that you are violating company policy in some other way.

Your employer may initiate an investigation or hire an outside investigator after:

• a coworker files a complaint with the human resources department,
• your supervisor reports you for a workplace violation, or
• an audit uncovers evidence of misconduct.

Oftentimes, by the time you are made aware of the ongoing investigation, it will have progressed beyond its preliminary stages. If you are notified of an ongoing investigation and are requested to provide testimony for it, it often means that it is nearing its conclusion and that there is enough evidence against you from other key witnesses to support its allegations and impose corrective actions.

Can I sue my employer over an investigation?

If your employer violates your rights during an internal workplace investigation, you may have grounds for a lawsuit. Some common lawsuits that get filed after an internal investigation are:

• wrongful termination for being let go after an investigation that failed to comply with company policies,
• retaliation for investigating you because you engaged in legally-protected activities, or
• defamation, if your employer spread false information about you.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Trust but verify: The biasing effects of witness opinions and background knowledge in workplace investigations – Journal of Safety Research.
• The Hidden World of Unconscious Bias and Its Impact on the Neutral Workplace Investigator – Journal of Law & Policy.
• The FCRA and Workplace Investigations – The Labor Lawyer.
• An illusion of objectivity in workplace investigation: The cause analysis chart and consistency, accuracy, and bias in judgments – Journal of Safety Research.
• Cognitive bias in workplace investigation: Problems, perspectives and proposed solutions – Applied Ergonomics.

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