What are my rights in workplace investigations?

I was falsely accused of damaging property at work. I have been an employee there for three years. The HR rep told me that security had me on tape and that it could prove that I did it and I could be terminated. She called me 2 days later saying that due to the evidence on the tape that I had been separated from the company but I that I could use the company grievance policy. I told her I would, and asked if I could view the tape. She said no and when I asked her why, she could not give me an answer. I asked her to tell me what I was wearing in this tape but she said she could not identify me because she had not seen the tape. She asked me 12 times to tell her what had happened and that she knew what happened because she had the tape. What should I do?

Posted  02-25-2015

Ann Kiernan replies:

Your question does not list where you work, but I am assuming that it is at a private sector, non-union employer. Public sector workers have broader rights than private sector employees, because the Constitution protects individuals from certain actions of government, which includes federal, state, county, and municipal employers. For example, government employees have the right to be free from unreasonable searches, and may have the right to have legal representation present during investigative interviews.

The Constitution does not apply to the actions of private employers during workplace investigations; however, employees of private sector, unionized workplaces have greater rights than non-union workers during internal investigations. Private sector employees who work in unionized workplaces have the right to have a union representative present during an investigation that may lead to disciplinary action.

As a person accused of misconduct, you should have a chance to defend yourself and present information and witnesses. You certainly should be given the opportunity to see the videotape, and I am surprised that your employer did not confront you with this vital evidence right away. When I have represented employees accused of misconduct, and there was a video available, defense counsel have always been eager to show it to me in the hopes that I would give up in the face of such convincing evidence. (And, they were usually right!)

If the employer continues to refuse you access to the video, you might want to consult a local employment lawyer. Good luck.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:38+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.