Workers don't necessarily have to see reports on investigations

ManagementSeptember 30, 2012 

Q. Two months ago, we received a series of increasingly worrisome anonymous emails allegedly sent by our company's employees. We tried to trace the emails but couldn't determine the sender or senders.

The emails accused two mid- level supervisors of bullying. Several of our senior management team didn't want to do anything based on the emails, saying that action would "give in" to cowards who hid behind anonymity. The rest of us said we couldn't hide our heads in the sand and had to act.

We hired an individual to interview all employees. We asked him to keep his real purpose and what he was learning confidential so we wouldn't unfairly damage the supervisors' reputations.

The consultant told us we had two ringleader employees who made it impossible for the supervisors to function by acting outraged when the supervisors asked them to follow normal procedures, and convincing other employees to act out. They also said several supervisors lacked skills and acted out in return, making things worse.

One of the supervisors got wind of this. He asked us point-blank if he was a subject of the investigation. When we said yes, he demanded to see the consultant's report, claiming he had a right to the information. Does he? He also claimed he had the right to know he was being investigated. Is this true?

A. Although Alaska Statute 23.10.430 gives your supervisor and every other employee the right to view his personnel file and any other personnel information maintained by the employer about him, it doesn't give him the right to view your investigator's report, because you were investigating the work environment, not him.

According to employment attorney Renea Saade: "Employers may, and typically should, keep investigation reports confidential. If, however, you take a disciplinary action against the supervisor, you need to document the basis for that decision and place this separate memo in his file and give him access to it if requested."

Next, your supervisor didn't necessarily have the right to know you'd launched an investigation. When the U.S. Immigration and Naturalization Service received third-party complaints about an INS investigator allegedly using abusive tactics and investigated, the investigator sued under the Privacy Act, claiming his employer hadn't notified him. The Court ruled for the employer, saying it would have been impractical to advise the supervisor before interviewing those who had complained. What do employers owe those targeted in investigations? The chance to rebut the complaints -- because their views are part of finding the truth.

However, anonymous complaints pose many challenges to employers and always need to be viewed with a healthy dose of skepticism as those who write them may have impure motives. When Connecticut's State Ethics Board terminated Ethics Chief Alan Plofsky after investigating an anonymous complaint, allegedly written by a parking lot attendant, they learned the complaint had actually been written by one of the ethics staff attorneys who intentionally misspelled words such as "anonimus" to hide her true identity. Plofsky ultimately won back pay, benefits and a new job.

At the same time, even anonymous complaints merit investigation because they put employers on notice they may have a problem and create a potential liability for employers who fail to reasonably respond. Further, employees with legitimate issues may fear speaking out. The Sarbanes-Oxley Act additionally requires publicly traded companies to establish a mechanism allowing employees to complain anonymously and without fear of retaliation about suspected accounting improprieties.

Finally, it appears you've found what many employers do when they tug the lid off their workplace Pandora's Box -- multiple players create most workplace problems.


Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Company Inc. Send your questions to her at www.thegrowthcompany.com.

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