Employee Cooperation in Investigations, Quirky Question # 9

Quirky Question # 9:

Two of our employees are involved in a romantic relationship.  We recently learned that our male employee assaulted our female employee at her apartment.  He was charged with domestic assault based on her report and convicted.

We then tried to elicit information from our female employee about whether she felt her paramour posed a risk of violence to her or any of her co-workers.  She refused to answer our questions, claiming they invaded her privacy.  We do have a policy that requires cooperation with our investigations.  What options do we have?  Can we fire her for refusing to assist in our investigation?

Dorsey’s Analysis:

Your questions implicate difficult issues that highlight the tension between the competing interests of employers to provide a safe, violence-free work environment, and employees’ legitimate privacy interests.  Here, the interests of the employer predominate.

Every employer has a duty to attempt to provide a safe work environment.  While all risks cannot be anticipated, known risks cannot be ignored.

Consider, for example, the potential consequences of a “do-nothing” approach.  If the male employee escalated the violence towards his significant other, and committed a violent crime against her in the workplace (or anyone else who intervened, or who just happened to be an innocent bystander), it would be extremely difficult to justify the company’s lackadaisical response, particularly if the injuries suffered by your female employee or your other workers were serious.  Defending a lawsuit by your other injured employees (or their families in the event of a death), would be difficult, at best.

Given this potential, it is imperative that you attempt to gather additional information from the employee involved to enable the company to assess the risk and, if necessary, take appropriate precautions.  Even in the absence of a company policy requiring cooperation in company investigations, your firm would be justified in exploring these issues thoroughly with the female employee.  Since your company has a specific policy requiring cooperation, your firm’s position is even stronger.

If your employee refuses to cooperate in the investigation, you could impose any discipline you deem appropriate, including discharge.  I would not advocate jumping to that ultimate sanction.  Rather, I would explain to her that a failure to cooperate jeopardizes her continued employment.  I also would explain why the company needs to explore these issues, both from a practical and legal perspective.  If she nevertheless refuses to reveal any of the information that you consider necessary to evaluate the situation accurately, you could impose a progressive disciplinary approach, starting with suspension with pay, then suspension without pay, and finally termination.  But, again, you need not pursue a progressive disciplinary approach if you have concluded that discharge is the appropriate response to this situation.

The fact pattern you describe is very similar to a case decided by the United States District Court for the Northern District of Ohio in late 2005, Rowe v. Guardian Automotive Products, Inc., 2005 WL 3299766 (N.D. Ohio).  In Rowe, like the situation you describe, two employees were living together.  The male employee assaulted the female employee, breaking three of her ribs.  The male employee was charged with assault and convicted.  This information came to the company’s attention when the male employee later received a 30-day jail sentence for driving without a license.  When the company explored the situation, it discovered the male employee had a lengthy criminal history involving alcohol abuse, threats to kill his ex-wife, physical acts of violence against his ex-wife, and the assault on Rowe.  Based on this history of violence, the company terminated the male employee.  The company also tried to obtain additional information directly from Rowe to ascertain whether the now-ex-employee posed a risk of harm to her, her co-workers, or her supervisor.

On three separate occasions, the company tried to elicit this information from Rowe and each time she refused to cooperate, arguing that the inquiries invaded her privacy.  She pointed out that she was on leave when the assault occurred and that it had not occurred at work.  Despite those facts, the company terminated her employment based on her refusal to cooperate with the company’s legitimate investigation.  The federal District Court upheld this decision, dismissing the plaintiff’s invasion of privacy case on summary judgment.

The bottom line is that employers have an obligation to attempt to create a safe, violence-free working environment.  If an employee refuses to support that effort by refusing to participate in an investigation bearing upon this issue, the employer is justified in discharging that employee.

Readers’ Responses:

I think it’s worth highlighting that in both the question and the cited case, the Company had a policy in place that required employees to participate in the investigatory process. Therefore, the employee should understand she is being approached consistent with the normal practices of the Company. I also believe it behooves the Company to articulate to the female employee one or more reasons to pursue the investigation that may make her feel uncomfortable. For example, if there is enough evidence (as appears to be the case in both instances) to terminate the male employee without the female’s input, she might naturally feel the investigation (and her part in it) is unnecessary. Therefore, having someone from the Company articulate the Company’s concerns about retaliatory acts by the male or other potential targets at the Company might enable the female employee to understand the Company is not merely voyeuristically interested in what she may perceive as a personal matter. Finally, in the cited case, the female was given numerous opportunities to comply with the Company’s investigation. This appears to be a prudent course of action where the female employee may be initially reluctant to speak — whether it be to “protect” the male or because she does not want to “relive” a traumatic experience.

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