Tips for Employee Misconduct Investigations

Schools are typically required by law, policy, or contract to conduct an investigation before an em­ployee is discharged, suspended without pay, or other­wise deprived of an employment benefit due to alleged misconduct. In light of a significant increase in the number of employee investigations we have seen, this article provides tips for school officials conducting or overseeing investigations. This article is not intended as a checklist for all employee investigations or to enu­merate all rights employees may have during an inves­tigation – additional legal requirements and practices may apply depending on specific factual circumstances and contractual requirements.

Commencing an Investigation

After receiving a complaint or report of behavior that allegedly violates a law, policy, rule, or directive, school officials first must determine whether an inves­tigation is warranted. The purpose of an investigation is to determine whether the employee engaged in the alleged conduct and, if so, whether that conduct vio­lates a law, policy, rule, or directive. Board policy will likely outline investigation procedures. The employee may need to be placed on paid, non-disciplinary leave pending the outcome of the investigation, depending on the gravity of the alleged misconduct and whether the employee’s presence at work could interfere with the investigation.

Employee’s File

School officials should review the employee’s personnel file to identify any prior discipline and to de­termine if the discipline is for similar misconduct. Sim­ilar misconduct may suggest a pattern of behavior and impact the discipline level if the alleged misconduct is substantiated.

Interview List

We recommend preparing a preliminary list of interviewees: witnesses and other people who may have information about the alleged misconduct. This list likely will evolve during the investigation. Often, the first interviewee should be the alleged victim or the person who reported the alleged misconduct. We also recommend identifying and preserving any physical or electronic evidence, including potentially relevant sur­veillance videos and e-mails. In doing so, consider whether to disable automatic delete or overwrite functions for e-mail and surveillance.

Interviews

An employee who is part of a bargaining unit has a right to union representation at any interview that the employer reasonably believes could result in the disci­pline of an employee being interviewed. School officials are not obligated by law to inform the employee of that right, but must typically permit union representation if an employee requests representation.

We recommend that the investigator prepare for the interview by outlining questions for each witness. The investigator, however, should be prepared to ask follow-up questions and change course if a witness’s answers lead elsewhere. The investigator should explain to the interviewee that the school takes alleged misconduct seriously, direct each interviewee to an­swer all questions truthfully and fully, and inform the interviewee that failure to do so could constitute insub­ordination and result in discipline, up to and including discharge. The investigator should take detailed notes; however, be aware that the notes may be subject to dis­closure in response to a FOIA request, subpoena, or court order.

At the end of each interview, the investigator should ask the witness to identify any other potential witnesses who may have relevant information and any evidence that substantiates the alleged misconduct or exonerates an employee. Evidence could include emails, social media posts, or videos. Finally, the inves­tigator should inquire whether the witness has any other relevant information.

Concluding the Investigation

After interviews are complete, the investigator needs to review all relevant evidence and notes. If wit­ness statements conflict, the investigator must deter­mine which witness(es) is more credible. To make this determination, the investigator should consider whether any witness or party has an incentive to fabri­cate facts, has a more detailed recollection of the facts than another, or has a history of being truthful.

Evidentiary Standard

The evidentiary standard in employee misconduct investigations is, in most cases, a preponderance of the evidence, which requires the evidence gathered by the investigator to establish that it is more likely than not that the employee engaged in the alleged conduct. If the investigator determines that a preponderance of the evidence supports that the employee engaged in the al­leged conduct, then the investigator must determine whether that conduct violates a law, policy, rule, or directive.

Report

The investigator should draft an investigation report that identifies people interviewed, summarizes interviewees’ statements, and explains tangible evi­dence gathered and considered. The report also should specify whether the investigator believes preponder­ance of evidence exists that the alleged conduct oc­curred and, if so, whether it violates a law, policy, work rule, or directive. The report may recommend disci­pline to the decision-maker, such as discharge or sus­pension. Policy or contract provisions also may require additional steps, such as sending written notice of the investigation’s outcome to each party.

The above tips are applicable to most employee misconduct investigations. Harassment and discrimi­nation investigations, including Title IX sexual harassment investigations, require a specific and more complex grievance process. If you are investigating an allegation covered by your anti-discrimination or anti-harassment policies, be sure to review those policies to ensure all steps are followed.

Employee misconduct investigations can be a daunting task. Those unfamiliar with conducting inves­tigations should seek assistance from an experienced colleague or legal counsel. Failure to properly conduct an investigation could give rise to claimed due process violations or lead to an erroneous decision and potential legal liability.