Getting Off On a Technicality
One of the many unpleasant tasks that HR and compliance professionals routinely deal with is the investigation that goes along with alleged misconduct, fraud, or any one of many other violations of policy – the key word in that sentence being policy. The majority of investigations take place after an alleged violation is reported through any number of ways, but for this discussion, let’s assume a report is made by a victim through some type of reporting system or corporate hotline.
The employee, possibly after experiencing the violation multiple times, finally reaches the point where they feel it needs to be reported. They reach out through whatever mechanisms the company has available and tell their story. The report is received and reviewed and, if it calls for an investigation, an investigator is assigned and the process begins.
The Value of Policy Documentation
Any of you who have ever gotten a speeding ticket or other minor traffic ticket will recall that the officer cites the specific law you broke by code number and description (i.e. G.S. 20-141 Speeding). A plain reading of the statute reveals that charges involving the second variety of speeding (which is commonly referred to as exceeding the posted speed, though there is no requirement that the speed be posted unless it is higher or lower than the presumptive 35 mph inside municipal corporate limits or 55 mph outside municipal corporate limits) require only a determination of whether the person drove a vehicle on a highway in excess of the maximum speed limit by 15 mph or by driving more than 80 mph, in which case the person committed a misdemeanor criminal offense. Otherwise, the offense is an infraction.
The officer who wrote the ticket is alleging that you violated a specific statute, providing evidence (like a reading off a radar gun) that did indeed violate it, and then it is up to the judge to determine if what you did, as evidenced by the officer, is sufficient to substantiate the allegation. Notice a few things – first, the officer recorded exactly what statute you are accused of violating. That statute has to be valid at the time, the factors determining your guilt or innocence need to be clear, and the evidence needs to support the charge.
So what the heck does this have to do with ethics and compliance? More than you may think. HR and compliance professionals don’t need to rush out and buy a radar gun, but the lesson here is in documenting the standards against which guilt or innocence is determined and resolutions are justified.
The missing piece for too many companies is the ability to have the policy that was in effect at the time the incident occurred easily available for the investigator to review. This causes delays and errors in the investigation or investigating against a policy standard that was not in effect. Either way, you will find out at the worst time – typically a year after the fact when you are served with a wrongful termination lawsuit. You may have been highly confident that your team conducted a fair and unbiased investigation and the termination was justified, but then you find out that “the radar gun had not been calibrated in over 90 days,” your investigation is invalid, and it’s time to go to the person who signs checks for the settlement now coming.
Don’t be a victim of losing due to a technicality. Make sure that your case management system lets your investigator know the standard they are investigating against and has easy access to the proof that the perpetrator did indeed read and attest to the policy.
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MEET THE AUTHOR
J Rollins is the co-founder and CEO of ETHIX360. J is a well known leader and innovator who has served on senior leadership teams ranging in responsibility from Chief Revenue Officer, Chief Marketing Officer, SVP of Product Strategy and Chief Operating Officer.
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At ETHIX360, our goal is simple: to provide an affordable, flexible, and comprehensive answer to employee communication, policy management, corporate training and case management on issues related to corporate ethics, code of conduct, fraud, bribery, and workplace violence.
