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

Barrett McNagny LLP

Legal Disclaimer

The information contained in the Barrett McNagny LLP website is for informational purposes only and should not be considered legal advice on any subject matter. Furthermore, the information contained on our website may not reflect the most current legal developments. You should not act upon this information without consulting legal counsel.

Your transmission and receipt of information on the Barrett McNagny LLP website, or sending an e-mail to one of our attorneys or staff, will not create an attorney-client relationship between you and Barrett McNagny LLP. If you need legal advice and want to establish an attorney-client relationship with Barrett McNagny LLP, please contact one of our attorneys by telephone, email, or other means of communication, and allow the attorney to confirm that the firm does not represent other persons or entities involved in the matter and that the firm is willing to accept representation. Until such confirmation is provided by one of our attorneys, you should not transmit information to us that you consider confidential. If you do provide information to us, and no attorney-client relationship is established, the information will not be considered confidential or privileged, and our receipt of such information will not preclude us from representing another client in a matter adverse to you.

Any links to other websites are not intended to be referrals or endorsements of those sites.

Privacy Policy

Terms of Use

ADA Compliance

Contact Us
Hello,
My name is
 
and I am a(n)
seeking legal counsel in the area of 
.
Please
me at
as soon as you can.

Thank you for contacting us!

A representative will be in touch with you shortly.

An attorney-client relationship will NOT be formed merely by sending an email to Barrett McNagny, LLP or to any of its attorneys. Please do not send any information specific to your legal needs until you obtain approval from a Barrett McNagny, LLP attorney, as the content of such email will not be considered confidential or privileged. By sending us an email, you confirm your understanding of this notification. If you agree, you may use the e-mail links on this page to contact an attorney.
YesNo