Careful How You Investigate: Forget What You've Seen in the Movies. Eavesdropping Doesn't Belong in Employee Investigations. Even E-Mail Investigation Can Be Dicey

By Oliner, Joyce | ABA Banking Journal, March 2004 | Go to article overview

Careful How You Investigate: Forget What You've Seen in the Movies. Eavesdropping Doesn't Belong in Employee Investigations. Even E-Mail Investigation Can Be Dicey


Oliner, Joyce, ABA Banking Journal


Most banks will be faced at some point with the need to investigate suspected employee wrongdoing, whether in regard to money laundering, garden variety theft, or sexual harassment. Investigating employee misconduct is complex, requiring both good judgment and an understanding of the legal framework in which the investigation is conducted. At the very least, a mishandled investigation may result in failure to cure a problem before it develops into a major headache; at worst, it may expose the bank to a raft of legal claims.

There is no single right way to conduct an employee investigation. Each case will present different challenges and will require sensitive handling. However, your bank can improve its legal position and the likelihood of a successful investigation by having appropriate policies in place from the outset; by careful selection of the investigative personnel, investigation targets and techniques; and by thoughtful handling of the information uncovered during the investigation.

Who should conduct the investigation?

Perhaps the first issue for any bank contemplating an internal investigation is selection of the investigator. There are several possibilities: internal legal or human resources staff, outside counsel, or an outside consultant.

Whoever is selected to conduct the investigation must be well versed in the general legal issues surrounding the investigation, and must be familiar with any relevant policies of the bank. Equally important, the investigator must be a credible potential witness for the bank in the event of subsequent litigation.

In considering whether to turn to in-house resources or to look outside, the bank should be aware of the impact of the federal Fair Credit Reporting Act on investigations. Until a very recent amendment to FCRA, the Federal Trade Commission had taken the position that reports of investigations into employee misconduct by third-party experts were "consumer reports" subject to the FCRA's notice, consent, and disclosure requirements. The FTC's position was troublesome, hampering the employer's ability to conduct an investigation using expert resources at a time when employers are under increasing pressure to police their workplaces.

In December 2003, Congress yielded to pressure from the employer community and amended FCRA to clarify that certain investigations of employee wrongdoing fall outside the act's requirements.

While the amendments significantly improve a bank's ability to use third-party investigators, there are still a number of legal hoops the bank must jump through in order to avail itself of the new exclusion.

First, the investigation must concern:

* suspected misconduct related to employment;

* compliance with federal, state or local laws or regulations, or the rules of a self-regulatory organization; or

* compliance with any preexisting written policies of the employer.

Second, the employer will lose the benefit of the exclusion if the investigative report is shared with anyone other than the employer, a government officer or agency, a self-regulatory organization with regulatory authority over the activities of the employer or employee, or as otherwise required by law.

Third, after taking any adverse action against an employee based in whole or in part upon the investigative report, the employer must give the employee a summary of the nature and substance of the report. The employer need not, however, identify the individuals who provided information in the report.

Who should be investigated?

Like any other employment action, the decision to investigate must be made for legitimate business reasons. While in most instances the bank will have an objective reason to select an employee for investigation, such as a complaint by a coworker, the bank must be careful that it does not appear to be singling out the employee for a legally impermissible reason. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Careful How You Investigate: Forget What You've Seen in the Movies. Eavesdropping Doesn't Belong in Employee Investigations. Even E-Mail Investigation Can Be Dicey
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.