Employee Rights

What Every Fraud Examiner Needs to Know

By Kevin P. Prendergast, J.D.

The phrase "getting off on a technicality" is well-known in the criminal law arena. If a law enforcement officer is found to have violated the rights of a suspect during a search or arrest, the suspect could walk free, regardless of his guilt or culpability. That same concept applies in the employment law setting as well.

For example, I was recently involved in a case involving an employee in a highly safety-sensitive position who was terminated for failing an alcohol screening. At the arbitration, the employee freely admitted to having consumed a 12-pack of beer prior to reporting to work. The employee was involved in an altercation on the job and was ordered to immediately go for the screening, which he couldn’t pass.

However, the employee, as a union member and a public employee, was protected by union contract, civil service rules, statutes, and the U.S. Constitution. His supervisors, when ordering the alcohol screen, had failed to follow the technical rules governing screening. This employee prevailed on the technicality, triumphantly returning to work with a year’s worth of back pay. Both supervisors were later disciplined by the employer who was quite irritated at having to sign a check for the back pay.

If you’re asked to investigate employee misconduct, you’ll need to know the laws that limit or even prohibit certain types of investigations. If you don’t, you could become embroiled in some nasty courtroom battles.

Ten years ago, the debate was whether an employee’s locker or desk could be searched. Today, the arguments are over the sanctity of hard drives, e-mail messages, and voice mail.

Employment litigation can have a tremendous effect on a company’s bottom line. Even when a firm prevails in court, the cost of managers tied up in depositions and trial preparation can be substantial. Avoid landing in court by knowing the laws and the latest interpretations.

As an initial matter – prior to commencing an investigation – you need to know what type of employment relationship exists between the employer and employee. This step will often set the ground rules to which you will need to adhere. Once you begin the investigation, you need to be aware of the applicable laws so that you can at least spot potential issues and avoid problems. You don’t need to be an expert but you do need to know all written procedures to avoid the "technicality trap."

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