Post Internal Investigations Matters

An internal investigation has been completed, but now a decision must be reached. If the investigation related to a claim or allegation that will result in discipline, the investigator must, usually, discern credibility of witnesses and relevant comfort levels with the information gathered.Once this has been done, the appropriate management individuals should be given the information and an educated decision made as to how to move forward.

In the discipline arena, once the information is gathered, in addition to coming to a conclusion as to what actually happened, the company must also assess the severity of the conduct, what level of discipline will deter the conduct from occurring again, and what parameters of discipline are mandated by relevant labor laws, labor agreements, or policy handbooks.

It is important to treat all employees fairly.To determine whether a termination is fair, an employer might subject the decision to a “smell test.” In other words, would a reasonable person consider the termination fair?The answer to this question should be based on the facts and conclusions reached during the investigation, not on emotion.The employer, therefore, should consider objective factors, such as:

• What is the employee’s performance history and how long has the employee worked for the company?If the employee had a good performance record for years, it may be unfair to terminate for one instance of poor performance.
• How severe was the employee’s misconduct?Termination is usually considered fair for serious infractions.
• Was this the employee’s first offense?It may be unfair to terminate for a first offense unless it is for very serious misconduct such as violence, theft, or espionage.
• Was the employee given notice through a progressive disciplinary process?
• Were other employees treated similarly under similar circumstances?
• Are there any hidden motives or miscommunications?

A termination must be consistent with an employer’s personnel policies, and the policies must be consistently applied.For example, if there is a progressive discipline policy, it should be followed in every case that results in termination (except in cases of serious misconduct).In assessing whether policies have been followed, consider these factors:

• Was the policy published?
• Was the employee aware of the policy?
• How has the policy been enforced in the past?
• Does the policy have procedural requirements to be followed?If so, have they been followed?

It is important that the decision to terminate be reviewed by management.Review by the manager of the supervisor requesting the termination reduces the chance that bias entered into the decision.

Courts have ruled that individual corporate officers, managers, and supervisors can be liable if they “intentionally or improperly” interfere with an employee’s relationship with the employer.The key to determining if such liability exists is determining whether or not a supervisor had a proper motive for terminating an employee.If the supervisor was acting with a “bona fide organizational purpose,” then liability will most likely not be found.Upper management should review all termination requests, especially in high-risk cases, to ensure that a termination is not the result of bias or improper actions.

Lastly, once the decision is made, the decision should be relayed to the relevant parties, documented within the appropriate individual’s personnel file, and a summary prepared documenting the actions.

Terminating an employee is a serious step and should be treated by your company as a step that warrants substantial investigation, documentation, and assessment. Following the guidelines herein can help to make sure that terminations are performed in a fair, just, and legal manner. If you have any questions regarding a termination policy or specific termination decision, please contact a member of Barrett McNagny's Labor and Employment team.