Workplace Investigations: Part I: Pre-Invesitagation Steps and Concerns

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August 20, 2018
Author: Sarah Delaney Vero, Esq.
Organization: Delaney Vero, PLLC


I. BACKGROUND
A. The Nature and Scope of Workplace Investigations

1. Definition
Workplace investigations are a systematic process of investigating, making a documented inquiry to establish facts regarding current or past behavior of employees and making a determination based on an analysis of the findings of fact uncovered.

2. The Need for Workplace Investigations
Investigations can identify employee misconduct, violations of employer policy and/or violations of the law. If done correctly, they can help keep an internal problem from becoming an external one, they can mitigate the potential of morale and productivity problems and prevent substantial legal problems and financial losses.

3. Overall Concerns for Employers

Few areas of human resources management are as fraught with as much peril as the workplace investigation. First there is the practical and legal danger associated with the activity for which a complaint was received, e.g., a report from one employee of sexual harassment by a co?worker. There is a real need to investigate and, if confirmed, stop the harassing behavior before it spreads any further. Second, an employer must be mindful not to add “fuel to the fire” by engaging in illegal conduct in its response. Improper conduct during the investigation could lead to possible claims or further claims of harassment, discrimination, retaliation, defamation, invasion of privacy, as well as implicating the Fair Credit Reporting Act and the National Labor Relations Act or Taylor Law. It is not uncommon for employers to be faced with multiple lawsuits from several employees as a result of one complaint received.

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There are also a myriad of unintended consequences that stem from poorly conducted investigations – negative impacts on employee morale, adverse publicity, feeding an organization’s rumor mill, distracting employees from their work, and ultimately, the cost. Another potential problem is that the investigation may create divisiveness when employees are asked to comment about activities of supervisors and colleagues, or to disclose information harmful to a co?worker.

For all of these reasons, it is essential for employers to be prepared to handle workplace investigations before they become necessary. The first preinvestigation step is knowing when to conduct a workplace investigation.

II. RECOGNIZE WHEN AN INVESTIGATION IS NECESSARY
A. Investigations Required by Law

1. HITECH and HIPAA

The Health Insurance Portability and Accountability Act (HIPAA) imposes a duty to investigate disclosures of protected health information (PHI) made without proper authorization. See 45 CFR §§ 164.400?414.

The Health Information Technology for Economic and Clinical Health Act

(HITECH) was enacted as part of the American Recovery and Reinvestment Act of 2009 (“Stimulus Bill”), P.L. 111?5. In addition to encouraging implementation of health information technology and transition from paper records to electronic health records, HITECH amended HIPAA to impose significant duties on covered entities and business associates to notify patients, the Federal Government and, where the breach involves 500 or more individuals, the media where an investigation reveals a breach of unsecured PHI.

2. Federal and State Anti?Discrimination Laws

Title VII, NYS Human Rights Law, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) can require employers to promptly investigate and take remedial action when complaints invoking these statutes are made. Malik v. Carrier Corp., 202 F.3d 97, 105 (2d Cir. 2000) (“an employer’s investigation of a sexual harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may allow a jury to impose liability on the employer.”).

A prompt and thorough investigation is not only required in response to harassment complaints, but an employer may also avoid liability under federal law for harassment or discrimination that does not involve an adverse employment action (e.g., termination or demotion) if the employer can demonstrate (1) it took reasonable steps to prevent and promptly correct harassment in the workplace; and (2) the aggrieved employee unreasonably failed to take advantage of the employer’s preventative or corrective measures. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998), Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

3. OSHA General Duty Clause

OSHA imposes a duty to investigate and remedy hazards and accidents. See 29 USC 654.

4. Drug Free Workplace Act

The Drug Free workplace Act requires covered employers to investigate and eliminate drug use in the workplace. See 41 U.S.C. §§ 8102?8104.

B. Other Types of Investigations
1. Background Checks and other Pre?Employment Inquiries

Employers should consider conducting appropriate background checks and make appropriate pre?employment inquires to ensure quality hires, as well as avoid claims for negligent hiring.

Employers that conduct criminal background checks must comply with New York Correction Law Article 23?A, which requires employers to take into consideration certain factors before making an employment decision based on an applicant’s criminal background. These factors include:

(i) the relationship between the past convictions and the duties and responsibilities the employment applicant will perform;
(ii) the bearing the convictions will have on the applicant’s fitness or ability to perform one or more such duties or responsibilities;
(iii) the time that has elapsed since the occurrence of the criminal offense;
(iv) the age of the applicant at the time of occurrence of the criminal offense;
(v) the seriousness of the offense;
(vi) any information produced by the applicant, or produced on their behalf, in regard to their rehabilitation and good conduct;
(vii) the legitimate interest of protecting property, and the safety and welfare of individuals or the general public.

Additional legislation passed in 2008 provides increased protection from negligent hiring lawsuits for employers that comply with Article 23?A. Section 296(15) of the New York Executive Law (Human Rights Law) now creates a “rebuttable presumption” that information regarding an individual's criminal background is excluded from evidence where the employer has made a reasonable good faith employment determination in accordance with Article 23?A. This means that a plaintiff will have a more difficult time prevailing in a negligent hiring suit where an employer has carefully considered the factors in Article 23?A before making any hiring decisions.

Employers who use pre?employment consumer reports from consumer reporting agencies to screen applicants must also comply with the Fair Credit Reporting Act (FCRA). See Section IV(A)(4) for a detailed description of what the FCRA requires.

2. Employee Misconduct

It may be necessary to conduct an investigation into violations of company policy and procedure, possible theft, workplace bullying and other forms of employee misconduct in order to determine whether there is just cause for discipline or discharge.

III. SELECT AN APPROPRIATE INVESTIGATOR
A. When to Select an Investigator

When the need for an investigation arises, time is of the essence. As such, employers need to plan for potential investigations by selecting two to three individuals who can be called upon at a moment’s notice. These individuals should be trained to conduct investigations and be provided with adequate authority by the organization to conduct a thorough and independent investigation.

B. Options for Appropriate Investigators
1. Human Resources Professional

Many Human Resources Professionals already have many of the skills and the knowledge needed to conduct an efficient and effective investigation, such as:

(i) experience acting as a neutral third party;
(ii) the ability to maintain confidentiality;
(iii) knowledge of company policies, procedures, practices and rules;
(iv) knowledge of the people and places being investigated;
(v) the ability to consider and implement interim protective measures;
(vi) experience maintaining positive employee relations during conflict; and
(vii) experience writing reports.

2. Members of Line Management

Many line managers possess the above skills and knowledge to be an appropriate choice, such as familiarity with company policies and procedures and first?hand knowledge of the people and places being investigated.

However, consider the following potential concerns:

(i) witnesses may be intimidated by line management;
(ii) line managers may be inclined to inadvertently interject bias into the investigation; or
(iii) witnesses may perceive that the line manager is biased because of past issues including prior discipline.

3. Private Investigator or Outside Consultant

Persons from outside the organization oftentimes are the most impartial investigators because they usually do not have any association with the organization or the employees and witnesses and therefore have not developed any bias against the accused or the witnesses. However, a private investigator or outside consultant may lack important knowledge of the company’s policies or culture.

4. In?House or Outside Counsel

An attorney is often the most prudent and impartial investigator. But because of cost, timing and other practicalities, an attorney may not always be an option. If that is the case, the investigation team should keep the following in mind:

(i) any documents (including e?mail) or tapes that are generated through the course of the investigation may become discoverable evidence in a lawsuit or a government inquiry; and
(ii) counsel should be consulted with both at the onset of the investigation and when making determinations at the end of the investigation to be sure that investigation findings are in accordance with the law.

B. Factors to Consider when Selecting an Investigator

1.
Impartiality
It is critical that the investigator acknowledge to her/himself that people bring their experiences and history to everything they do – whether on a conscious or unconscious level. All of that informs their perspectives, and acknowledging and “managing” personal preconceptions, biases, preferences and prejudices is an important part of the investigator’s preparation for each new investigation. These must be acknowledged, addressed and set aside to enter the process with an open mind, impartial and non?judgmental attitude. The investigator selected must be viewed as impartial – that is, he or she should not have any discernable bias or grudge. Keep in mind that the investigator’s impartiality could be subject to challenge.

2. Professionalism and Credibility
The investigator’s professionalism and credibility will be judged very attentively and high standards will be applied to the investigator. Others will take their cues from the investigator – so that person is also a role model of the behaviors he/she expects from others involved.

3. Reputation among Employees and Management as Honest, Neutral and Fair
The reputation of the investigator must be as without blemish as possible. The investigator cannot be known inside the organization as someone who participates in gossip, tells or accepts jokes or questionable emails, ridicules employees behind closed doors, or has “favorites” or close personal relationships with colleagues. The investigator’s history has to be one where they have not been caught in lies, have stayed out of organizational politics as much as possible, and who has a record of straight talk and fair dealing.

4. Knowledge of Relevant Policies, Procedures, Practices and Rules
The investigator should be familiar with the organization’s policies that are relevant to that investigation. Specifically, the investigator should be familiar with the complaint and appeal procedure, workplace rules and any policies regarding discipline. If the organization is unionized, it is important that the investigator be familiar with the collective bargaining agreement.

5. Communication and Interviewing Skills
The investigator should have a good understanding of how to communicate with witnesses. It is imperative that the investigator be able to get the information they need out of even the most difficult of witnesses.

6. Ability to Maintain Confidentiality
Confidentiality is key to any investigation. You must ensure that the investigator is not inclined to share any information obtained during the investigation, except on a “need to know basis.”

7. Ability to Adapt to and Follow Up on Unexpected or New Information
No matter how much an investigator may prepare for an investigation, inevitably something happens that the investigator was not prepared for. Therefore, the person chosen to conduct an investigation must be able to adapt quickly and quietly without disrupting the flow of the interview or the investigation.

8. Status as an Attorney or Other Independent Third Party
An attorney or third party will most likely be an unbiased investigator and perceived as such by witnesses. However, witnesses may be intimidated or reluctant to talk to an outside party.

9. Effectiveness as a Potential Witness in an Administrative or Court Proceeding
It is imperative that an investigator be able to testify effectively at either an administrative or court proceeding. That person will have first?hand knowledge of the details of the investigation, including who was interviewed, what they said, what conclusions were reached at the conclusion of the investigation and what, if any, remedial action was taken. The answers to these questions are all keys to mounting a successful defense against a discrimination or harassment suit.

IV. KNOW THE LAW
Workplace Searches

Searches are an integral part of workplace investigations. They can support or refute witness testimony, uncover relevant evidence and help prevent unlawful and violent conduct. Potential workplace searches include searches of technology resources and other employer property, searches of an employee’s person and/or belongings, background checks and polygraph testing.

1. Technology Resources – Computers, laptops, e?mail, servers, smartphones, tablets, voicemail, removable media, storage devices and Internet search history.

(i) Electronic Communications Privacy Act
The Electronic Communications Privacy Act of 1986 (“ECPA”) is a federal statute that updated older federal wiretapping laws to include protection for digital communication. The ECPA creates civil and criminal liability for anyone who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication.” Employers must be aware of and comply with this law when considering monitoring employee phone calls and e?mails.

Several exceptions are available to an employer that wishes to monitor employee activity:

a. Consent. Interception of a communication is allowed when one of the parties to a communication has given prior express or implied consent. See 18 U.S.C. §§2511, 2701. Express consent to be monitored should be given by the employee, and employers should specify the use (business only versus business and personal) of the employer’s technology resources that is subject to search. See Section V(1) for advice on how to obtain informed consent through a well?drafted Information Technology policy.

b. “Provider” Exception. If the employer is a system provider under the ECPA, it may intercept email if the interception is done during the normal course of business and is either (1) a necessary incident to the rendition of services or (2) necessary to the protection of the rights or property of the employer?provider. See 18 U.S.C. §2511.

c. “Stored Communications” Exception. The person or entity providing a wire or electronic communications service may monitor stored communications.

d. “Ordinary Course of Business” Extension. This exemption can only be claimed for monitoring performed by and recorded in the ordinary course of business through the use of equipment furnished to the employer by a “provider of wire or electronic communication” in the ordinary course of the provider’s business. See 18. U.S.C. §2510.

(ii) Federal Omnibus Crime Control and Safe Streets Act (Wiretapping Statute)
This statute provides a civil cause of action to those individuals whose wire or oral communications are intercepted without the employee’s consent. It has been used by employees to challenge employer monitoring of workplace telephone calls. Employers, however, are usually able to take advantage of one of the following exceptions:

a. Consent exception – as long as one of the parties’ communication consent, then there is no violation. As such, the employer can tap?record a phone interview with an employee because the employer is the one party who as consented. However, an employer would violate the statute if it recorded a conversation between two employees without either employee knowing about it.

b. Extension telephone or ordinary course of business exception – the Act contains an extension telephone (or ordinary course of business) exception that excludes from unlawful interception “any telephone equipment … or any component thereof, … furnished to the subscriber or user by a provider of electronic communications service in the ordinary course of business and being used by the subscriber in the ordering course of business and being used by the subscriber in the ordinary course of business.

What these laws mean is that, without consent, employers can only listen to business calls involving the ordinary course of business. However, under New York law, consent must be obtained regardless of whether the calls involve the ordinary course of business.

(iii) New York Penal Law §250 (New York Wiretapping Law)
Under Section 250 of the New York Penal Law, wiretapping (the intentional overhearing or recording of a telephonic or telegraphic communication by someone other than the sender or receiver without consent), and the interception or accessing of electronic communications, including e?mail, are Class E felonies.

The monitoring, interception and disclosure or e?mail communications is permitted only with the express or implied consent of one of the parties to the transmission.

The New York Wiretapping Law does not contain the “ordinary course of business” exception contained in the federal law.

2. Other Employer Property – Desks, lockers, vehicles, workstations and file cabinets.

Employees do not have a right to privacy in employer?owned property, and an employer is entitled to search its own property. However, employees oftentimes incorrectly believe they have a privacy right in their desks, lockers, vehicles and other employer?provided property. As such, employers should implement a policy that notifies employees that they should have no expectation of privacy in employer property and that such property is subject to search at any time without notice.

3. Employee’s Person and Property – Employee’s person, clothing, briefcases, purses, backpacks, mail, and packages.

(i) Right to Privacy
As stated above, New York has not enacted broad privacy legislation outside of the statutes listed in this Section, and generally employees do not have a common law right to privacy. However, this does not stop employees from believing they have privacy rights in the workplace, especially in their person and personal belongings. For this reason, employees should be notified by policy that workplace searches can include searches of their person and personal property. In addition, the following guidelines should be followed:

  1. Do not conduct a search without reasonable suspicion (without stating such in policy);
  2. Conduct the search with management witness present;
  3. If employee objects that the search would result in discovery of confidential information, consider asking a third party to search for object;
  4. Beware of the potential to discover confidential information (e.g., prescription medication);
  5. Employees failure to cooperate may constitute insubordination;
  6. Generally, do not restrain or otherwise touch employee. If a search of an individual’s person needs to go beyond turning out pockets, involve law enforcement.

(ii) New York Penal Law § 250.25

This section of the Penal Law prohibits the opening or reading of a sealed letter or other sealed private communication without consent of the sender or receiver. There are criminal implications to a violation. While the reported cases provide little guidance on letters that are addressed to employees at the employer’s place of business, employers should obtain consent from employees that receipt of mail at work may result in it being opened and reviewed by the employer.

4. Fair Credit Reporting Act (FCRA)

Hiring a job applicant with an undesirable background, criminal record or falsified credentials may carry enormous economic and legal consequences. To help limit potential liability, many employers use pre?employment consumer reports from consumer reporting agencies (CRAs) to screen applicants. Such checks are effective in limiting exposure to claims such as negligent hiring, wrongful termination, or workplace harassment.

The FCRA defines “consumer report” much more broadly than standard credit reports. It affects a wide variety of information obtained concerning job applicants. A consumer report includes criminal and civil records, driving records, civil lawsuits, reference checks and any other information obtained by a CRA. While the information in the report may help protect the employer from potential liability, the FCRA provides certain rights to employees that employers need to be aware of and comply with certain requirements related to these rights.

Violation of the FCRA may give rise to agency enforcement as well as a private suit where punitive damages and attorneys’ fees are recoverable for willful noncompliance.

(i) Employer Obligations

a. Prior to ordering a consumer report, including a criminal history, an employer must provide the employee or applicant with a written statement of disclosure informing the individual that the employer intends to obtain a consumer report. This disclosure must be “clear and conspicuous” and must be presented to the employee as a separate or “stand alone” document (i.e., it cannot be included within an application for employment). 15 U.S.C. §1681b(b)(2)(A).

b. An employer must obtain written consent prior to ordering the consumer report. 15 U.S.C. §1681b(b)(2)(B).

c. The reporting agency can issue the consumer report once an employer has certified to the agency that (1) the disclosure and consent requirements outlined above have been met; (2) the consumer report will not be used in violation of state or federal law; and (3) the employer will comply with the requirements for taking adverse employment action. 15 U.S.C. §1681b(b)(1)(A)

d. If, after reviewing the credit report or the criminal background check, an employer is inclined to make an adverse employment decision based in whole or in part upon the report or check, the employer must provide the individual affected with a copy of the report and a description of his or her consumer rights before the adverse action is taken. An employer may comply with this requirement by supplying the employee or applicant with the summary of consumer rights formulated by the Federal Trade Commission (FTC), “Summary of Your Rights under the Fair Credit Reporting Act.” The purpose of this document is to give the individual a reasonable opportunity to dispute the report that is being used against them. If the report is inaccurate or incomplete, the individual then has the opportunity to contact the CRA to dispute or explain information contained in the report.

e. If an employer proceeds with the adverse employment action, the individual affected is entitled to a copy of the consumer report, as well as a written summary of his or her consumer rights (“Summary of Your rights under the Fair Credit Reporting Act” satisfies this requirement). 15 U.S.C. §1681m(a). The employer must inform the individual affected that the consumer report was the basis for the employment decision and provide the name, address and telephone number of the consumer reporting agency which issued the report. This notification must also include a statement that the CRA did not make the adverse employment decision and will not be able to explain the specifics of the employer’s decision. The employer’s notice must inform the individual affected that the copy of the consumer report will be provided free of charge by the CRA provided the individual makes a written request within 60 days. Finally, the employer must inform the affected individual that he or she may dispute the accuracy or completeness of the information in the report with the CRA. 15 U.S.C. §1681m(a)(3).

(ii) Disposing of Consumer Information

a. The Fair and Accurate Credit Transactions (FACT) Act of 2003 requires businesses to take appropriate measures to dispose of sensitive information derived from consumer reports. Any entity that uses a consumer report for a business purpose is subject to the law. The disposal rule applies to consumer reports or information derived from consumer reports. The definition is broad enough to cover an information relating to employment background, check writing history, insurance claims, residential or tenant history or medical history

b. The standard for proper disposal is reasonableness under the circumstances and allows discretion in weighing the sensitivity of the information, the costs and benefits of different disposal methods and changes in technology. The FTC is responsible for implementation of the FACT Act and has cited the following practices with approval:

i. burn, pulverize or shred papers containing consumer report information so that the information cannot be read or reconstructed;
ii. destroy or erase electronic files or media containing consumer report information so that the information cannot be read or reconstructed; or
iii. hire a document destruction contractor to dispose of material specifically identified as consumer report information consistent with the disposal rule.

5. Employee Polygraph Protection Act (EPPA)

The Employee Polygraph Protection Act of 1988 generally prohibits employers from using lie detector tests, either for pre?employment screenings or during the course of employment, with certain exemptions. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. In addition, employers are required to display the EPPA poster in the workplace for their employees, a copy of which can be obtained from the Department of Labor’s website at http://www.dol.gov/whd/regs/compliance/posters/eppac.pdf.

(i) Exemptions

a. Federal, state and local governments are excluded. In addition, lie detector test administered by the Federal Government to employees of federal contractors engaged in national security intelligence or counterintelligence functions are exempt.
b. The Act also includes limited exemptions where polygraph tests (but not other lie detector tests) may be administered in the private sector, subject to certain restrictions:
c. To employees who are reasonably suspected of involvement in a workplace incident that results in economic loss to the employer and who had access to the property that is the subject of the investigation; and
d. To prospective employees of armored car, security alarm and security guard firms who protect facilities, materials or operations affecting health or safety, national security or currency and other like instruments; and

iii. To prospective employees of pharmaceutical and other firms authorized to manufacture, distribute or dispense controlled substances who will have direct access to such controlled substances, as well as current employees who had access to persons or property that are the subject of an ongoing investigation.

B. Constitutional Concerns

In public sector employment, the federal constitution protect individuals from unreasonable searches conducted by the government, even when the government is the employer. The federal constitutional protections against unreasonable searches and the protection of employee privacy rights are generally not applicable to private employers.

The rule of reasonableness governs searches. The reasonable of a work?related search depends on the following:

(i) Did the employee have a “reasonable expectation of privacy” in the area or property searched?; and
(ii) If so, did the employer’s legitimate interest in controlling the workplace outweigh that privacy expectation?

While this analysis only applies to public sector employment, it can and should be applied even with private employers. Policies informing employees that their lockers or tool boxes may be searched help reduce employees’ expectation of privacy.

C. National Labor Relations Act
1. “Weingarten” Rights

In the 1975 case NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees in a unionized workplace may request the presence of a union representative at an investigatory interview that the employee reasonably believes might result in disciplinary action.

In 2001, the D.C. Circuit Court extended this holding to the non?unionized setting in Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095 (D.C. Cir. 2001).

In 2004, the Board overruled Epilepsy Foundation in IBM Corp., 341 NLRB No. 148 (June 9, 2004). As a result, non?union employees are not currently entitled to representatives in investigatory interviewed. However, President Barack Obama’s designation of Wilma Liebman as Chairman of the National Labor Relations Board may result in yet another swing of the pendulum on this issue. The backgrounds and writings of the current Board Members demonstrate strong support for non?union employees to again have the right to request that a representative accompany them to an investigatory interview if the employee reasonably believes the interview could result in discipline.

2. Circumstances Under Which an Employee is Entitled to a Representative A unionized employee’s Weingarten rights apply only to meetings which the employer that are reasonably expected to result in discipline or discharge for the employee being interviewed. When merely informing an employee of a predetermined disciplinary decision, there is no Weingarten right. There is no requirement that employees be notified of their right to have a co?worker present. The rights arises only upon the employee’s request.

D. Use of Social Media in Investigations
1. Stored Communication Privacy Act (SCPA)

The Stored Communications Privacy Act (SCPA), 18 U.S.C. §2701 et seq. is part of the ECPA and provides privacy protections to communications that are stored on Internet sites (such as Facebook, Twitter, etc.) and imposes criminal penalties on individuals who gain unauthorized access to such stored communications. Particularly, it addresses both voluntary and compelled disclosures by Internet Service Providers (ISPs) of “stored wire and electronic communications and transactional records.”

Section 2701(a) of the SCPA imposes criminal penalties for anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided or … intentionally exceeds an authorization to access that facility and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system ….” The offenses set forth in Section 2701(a) do not apply with respect to conduct authorized (1) by the person or entity providing a wire or electronic communications service; (2) by a user of that service with respect to a communication of or intended for that user; or (3) as otherwise set forth in various sections of the SCPA. See 18 U.S.C. §

2701(c). In one of the first cases to analyze the SCPA’s application to social media, a New Jersey federal court recently held that an employee’s Facebook wall posts were protected by the SCPA. Ehling v. Monmouth?Ocean Hospital Service Corp.., No. 2:11?cv?3305 (D.N.J. Aug. 20, 2013). An important factor in the court’s ruling was the fact that the employee had set her privacy settings to restrict her posts to her Facebook friends. The court found that the employer had not violated the SCPA by viewing the employee’s wall, however, because a coworker, who was one of her Facebook friends, showed the post to their employer without any prior prompting by the employer. Cf. Pietrylo v. Hillstone Rest. Group d/b/a Houston’s, 2009 U.S. Dist. LEXIS 88702(D.N.J. Sept. 25, 2009) (holding that the jury could find a violation of the SCPA where the employer accessed an employee’s MySpace page by requesting a co?worker’s MySpace login information).

2. Implications for Workplace Investigations

Employers should be mindful not to run afoul of the SCPA by covertly monitoring their employees’ private social networking postings by, for example, using spyware to track keystrokes to surreptitiously obtain an employee’s login information.

The SCA’s protections extend beyond such covert measures, as “unauthorized access” also encompasses situations where authorized access is exceeded. Employers should refrain from requesting log?in information from employees, as any such request could be misperceived such that an employee may feel unlawfully pressured into providing the information requested.

V. IMPLEMENT APPROPRIATE POLICIES

Establishing certain policies will clarify employee understanding and put them on notice regarding management’s expectations for workplace behavior, proper avenues of complaint and the employer’s intent to conduct lawful investigations. These policies should be readily available to employees, preferably in an employee handbook. Employers that are considering whether to distribute handbooks electronically must consider the following factors when considering whether to adopt electronic distribution of handbooks to all or parts of the workforce:

  • Will the electronic handbook allow the employer to effectively communicate company policies and procedures to all employees?
  • Do all employees have access to the required delivery system?
  • Have all employees been properly trained on the use of the electronic delivery system?
  • What accommodations will be needed for employees with mental or visual impairments that preclude them from accessing the information electronically?
  • How will policy changes/additions be communicated to employees?

Regardless of the medium for delivery of the employer’s handbook, the employer must ensure employees have access to the handbook and obtain an electronic or hard copy acknowledgment that each employee has received and read the handbook.

In addition, employers should post certain policies in conspicuous work locations including the harassment and complaint procedures. Employers must consider the special needs of employees including translating key policies into the dominant language of non?English reading employee groups.

Finally, employers should conduct training for management and non?management employees about discrimination and harassment, the complaint process and other employee rights policies. It is important to maintain proof of attendance, which can be accomplished through a sign?in sheet that is signed by the employee.

1. Information Technology Policy

Prior notice and consent is the safest way to avoid liability under privacy laws. Employers should establish that an employee does not have any expectation of privacy in his/her electronic communications through implementation of a policy and annual training sessions regarding usage. Employers should be clear that they can review an e?mail for anyone reason to or no reason at all, at any, without notice. Employees should be asked to sign an acknowledgement of receipt for the policy. Such policies should cover not only email and internet usage but also messaging, text messages, and use of the Internet. A winning IT policy will include statements on the following:

(i) Define technology – it should be as inclusive as possible
(ii) Use of technology provided – make clear that it is by company authorization only
(iii) Business use ? provided technology is to be used for business purposes only; personal use is prohibited or restricted
(iv) Definitions of improper use – may include personal use but must include harassment, leaks of confidential information, defamation, engaging in outside work while on the clock or violating the law
(v) Company retains right to access and monitor – state that the employer will monitor at its discretion. At least one court has held that stating an employer “may” monitor is ambiguous and is not sufficient notice. Curto v. Medical World Communication, 2006 U.S. Dist. LEXIS 29387 (E.D.N.Y. May 15, 2006)
(vi) Lack of privacy – specifically state employees should have no expectation of privacy
(vii) Passwords – passwords do not create an expectation of privacy
(viii) Deletion of information Is ineffective
(ix) Software use – software is not to be copied.

2. Record Retention and Destruction Policy

It is always prudent to establish, maintain and follow a records retention and destruction policy. There are a number of documents, including payroll records, which the law requires an employer retain for a certain amount of time. But also, because the burden is on the employer to prove it has adequately conducted an investigation and remedied any alleged harassment or discrimination, the proper retention of documents is oftentimes the key to winning a harassment or discrimination lawsuit. As such, a policy should require that once an investigation has begun any and all documents associated with the investigation are retained in a separate file that is accessible on a “need to know” basis.

3. Anti?Discrimination Policy with Complaint Procedure

As stated by the Supreme Court in Ellerth, “Title VII is designed to encourage the creation of anti?harassment policies and effective grievance mechanisms.” While not expressly required by applicable law, an employer’s failure to have a written anti?harassment policy in place will make it very difficult to prove that it exercised reasonable care to prevent and correct harassment. The policy should include, at minimum:

(i) A description of prohibited conduct;
(ii) A complaint procedure that:

a. provides more than one avenue of complaint;
b. assures confidentiality to the greatest extent possible;
c. provides for a prompt, thorough, and impartial investigation; and
d. assures immediate and appropriate corrective action when unlawful harassment is found to have occurred; and
e. prohibits retaliation.

See EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999), available at http://archive.eeoc.gov/policy/docs/harassment.html#V.

4. Anti?Retaliation Policy

Employers should have a comprehensive anti?retaliation policy that prohibits retaliation against any employee who uses a complaint procedure or for filing, testifying, assisting or participating in any manner in any internal investigation or any investigation, proceeding or hearing conducted by a governmental enforcement agency. See Crawford v. Metropolitan Gov’t of Nashville and Davidson Country, Tennessee, 555 US 271 (2009) (extending the scope of protected activity to include participation in an internal investigation.)

In addition to prohibiting retaliation, the anti?retaliation policy should include a complaint procedure that provides for an immediate, thorough and objective investigation of any claim of unlawful or prohibited retaliation.

5. Workplace Investigations / Searches

Investigations will run more smoothly if you have policies in place that cover a variety of investigation?related policies. The workplace investigations and/or search policies can establish limited or no expectations of privacy. The policy should notify employees that the employer’s electronic communications systems – email, Internet, Personal digital assistants, smartphones, telephone, voice mail, beeper, any messaging service, electronic contact and calendar programs, computer systems in general – wherever accessed – are provided for business purposes and outlining what (if any) expectations they should have regarding monitoring, privacy, retrieval and storage etc. are fundamental to conducting your investigation.

Also, employers will facilitate investigations when they have policies in place that address privacy expectations and employer access to the employee’s car, desk, locker, tool box, lunch box, briefcase, purse, etc. whether locked or unlocked, while on company property.


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