By: Rob Parker

Can an employer force an employee to participate in a workplace investigation? A member recently called our HR Hotline with this dilemma.

An accident occurred involving one of their customers on company premises.  It was a bad accident and the customer was seriously injured.  Before help arrived on the scene, for reasons unknown, an employee took a photo of the injured customer and began showing it to coworkers.  One of the coworkers who was shown the photo informed management and management informed HR.  After consulting with NAE, HR decided to have a conversation with the employee regarding the photo and try to obtain any information the employee had about the accident.

During the conversation with the employee, HR explained that they were trying to find out how the accident happened and that the photo and any information the employee had could help in that effort.  The employee refused to provide any information to HR and refused to show them the photo that was taken of the injured customer.  The employee told HR that they could not force his/her cooperation in any investigation.

NAE was again consulted. NAE made arrangements for the employer to meet with legal counsel to discuss whether there was a legal means to obtain the photo and what disciplinary action, if any, could be taken against the employee.

A number of courts have ruled in favor of employers who took disciplinary action against employees, including termination, for not cooperating in workplace investigations.  The quid pro quo, however, is that those same employees may not be retaliated against for cooperating in the investigation.

The United States Supreme Court has ruled that these retaliation provisions not only protect employees who make a complaint, but also employees who participate in the investigation of the complaint as witnesses. Employees can’t be treated negatively (for example: fired, demoted, transferred, or given worse assignments) because they answer questions or provide information related to a workplace investigation.  However, these protections don’t extend to an employee’s refusal to participate in a workplace investigation.

Some employers have policies requiring employees to participate in investigations of workplace misconduct.  Even without such a policy, however, employers have the right to insist on the employee’s cooperation.

Before making the decision to take disciplinary action consider that there are legitimate reasons, at least in the employee’s mind, not to participate in an investigation, including fear of retaliation. This is especially true if it is the employee’s supervisor who is being investigated.  The employee may also feel that coworkers will shun him or her for cooperating with management. These are legitimate concerns. Address them before taking any disciplinary action.

And as always, NAE members should consult with NAE if faced with this dilemma, so we can go over all of the facts to ensure the situation is handled properly.