As employees, you have rights during a workplace 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. They also cannot break the law while investigating you for wrongdoing. You also have legal protections against retaliation for exercising other rights in the workplace.
What are my employee rights under the employment contract?
The procedures for an internal workplace 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:
- 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,
- protect you from termination or other disciplinary action if no evidence of wrongdoing is found, and
- be performed promptly.
Some employers also give you a right to legal representation during an internal investigation. Not all do, however.
The terms of your contract give you 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. By establishing an attorney-client relationship and getting the legal advice of a lawyer, you can perform your own thorough investigation and fact-finding mission. This can help defend against the investigation and prepare for a lawsuit afterward.
Do I have any legal rights during an internal investigation?
Yes, state and federal employment law provide numerous legal rights to workers who are the target of a workplace investigation. Some of the most important are legal protections under federal law against:
These rights keep your employer from conducting an investigation for the wrong purposes.
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.
You also have a legal right to not participate in the investigation. However, if your employment contract requires you to cooperate and answer questions, invoking this legal right often leads to termination. While this 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,
- 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.
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.
- See, e.g., California Government Code 12940 GOV (California Fair Employment and Housing Act (FEHA)), 29 USC 660(c) (forbidding retaliation against employees who blow the whistle on violations of the Occupational Safety and Health Act (OSHA) of 1970), and 15 USC 78u-6 (the Dodd-Frank Wall Street Reform and Consumer Protection Act, which prohibits retaliation against people who report potential legal violations by public corporations).