Archive for the ‘Workplace Investigations’ Category

Workplace Investigations: Part 3 of 3: Drug Testing

October 10th, 2013

Legal Drug Testing in the WorkplaceThere’s reason to believe Sandra in Sales is under the influence of something at work each day. She just hasn’t been acting herself lately. But, now what?!

Drug testing is considered a workplace investigation. While some Federal contractors and all Federal grantees are required by law to drug test periodically to ensure a drug-free workplace (under the Drug-Free Workplace Act of 1988), the majority of employers across the U.S. are NOT required to drug test.

Although not required by law to test, most private employers have the right to test for a wide variety of substances. Before requiring an employee to undergo mandatory testing, it’s important that you as the employer have familiarized yourself with various state and Federal regulations that may or may not apply to your organization, and have designed a drug-testing program that is fair and legal. Some state and local governments have statutes that limit or prohibit certain types of workplace testing.

It is critical to have a clear written policy letting employees know about the types of testing that may be done and what will happen to them if a test yields a positive result. This includes all types of pre-employment testing, for-cause testing, reasonable suspicion testing, post-accident testing and random testing.

If you are “in the clear” to test within the workplace, it’s also very important that you keep the results absolutely confidential. The documentation should be kept in the same confidential file of medical information that is used for Americans with Disabilities Act (ADA) purposes.

Does your Company currently have a drug-testing program and policy in place? PEOs  provide professionally written employee handbooks and policies that translate into clear expectations and peak performance within the workplace. If you don’t already work with a PEO and are interested in the co-employment relationship – or – need a second opinion on workplace testing and an existing scenario, contact PEO Advantage today.

Workplace Investigations: Part 2 of 3: General Searches

October 1st, 2013

Workplace SearchesLast week we discussed workplace investigations regarding computer files and communication, and as you learned, the right to search most often lies with the employer. After all, it is your equipment and your office the employee is utilizing. However, general searches are a bit more complex.

The need to search someone’s personal belongings may arise for a number of reasons – perhaps there’s a suspicion of employee substance abuse…or there’s been some type of vandalism committed during today’s lunch break. Or, in a much more serious situation, perhaps there’s been a threat made against others and there’s reason to believe someone is planning to harm someone else or themselves.

Under OSHA, employers must investigate problems and prevent future similar problems from occurring, to the best of their ability. In regards to the prevention of workplace violence, employers have a duty to investigate threats and prevent acts of violence from occurring within the workplace. However, we’d like to stress that in violent situations or threatening situations, local law enforcement should be contacted before attempting to handle on your own as the employer.

So, what about a less serious search – for example – looking in an employee’s briefcase or purse for something? In short, this is not recommended. In general, employees have a reasonable expectation of privacy surrounding their own personal items…. unless of course the employee was told otherwise before accepting a job at your Company.

The key in protecting yourself as the employer in general searchers is to have a good search policy in place BEFOREHAND. If you have made it well known (this includes outlining everything in writing within your employee handbook or company policy) that the entire workplace is subject to search at any time, you have the right to search personal areas when there’s reasonable cause. This includes locked desk drawers or lockers.

A very good search policy will also include personal items that are brought on to the worksite including purses, briefcases, containers, and even cars parked on company property!

Did you know that most PEOs can help you establish your own search policies in addition to employee handbooks and company policies?  Call 877-636-9525 to find the best Professional Employer Organization for you. But, if you are in immediate need of a workplace investigation at this time, it is recommended you contact an employment law professional before proceeding.

Join us next week as we dive further into workplace investigations with employee drug testing.

Workplace Investigations: Part 1 of 3 : Computer Files

September 26th, 2013

Video Monitoring EmployeesAt some point in time nearly every business owner will find themselves in need of conducting a workplace investigation. Whether you believe an employee is stealing confidential company files, or is bringing illegal substances into the workplace, it’s certainly “your business” – but is searching them actually legal or is it an invasion of privacy?

There are many types of workplace investigations that can occur in the workplace. We invite you to join PEO Advantage in the upcoming weeks for our 3-part series reviewing 3 of the most popular types of investigations: computer files, general searches, and drug testing (yes, testing – not just searching- is considered a type of investigation).

So, let’s start with computer files and forms of communication.

You’ve heard from other employees and suspect yourself that Mike in Marketing is in cahoots with a major competitor. Could he be stealing confidential data from your company and passing it along to the “enemy” right in front of your own eyes?!  Before searching his computer or opening up an investigation it’s important to know what is and is not legal.

The very first step is to review your company policy. In the event that this issue is brought to a court of law, it’s important to note that the majority of courtrooms will side with the employer on a search, if  the company policy was known to the employee. Most employees do not have a reasonable expectation of privacy at their desk and employers have the right to search.

Email: Many courts have found that employers are generally free to read and monitor company email communications. A survey conducted by the American Management Association (AMA) back in 2008 revealed that more than half of the responding companies monitor employee email, and one quarter of them have fired an employee for misusing email. While it’s highly recommended to have a company email policy, you as the employer still probably have the legal rights to read employee email messages sent using your equipment and your network. Always consult with an employment law professional beforehand if you do not have an email policy in place and are unsure.

Video Monitoring: Here’s another way to try and figure out if Mike is putting confidential files on a zip drive and leaving the workplace with them – but is it allowed? There is little limitation on the use of non-audio video recording. Some states have limitations regarding privacy laws, but in most instances video monitoring in the workplace is permitted.

Keylogging: Because the computer belongs to the company, employers have the right to install keylogging programs. These programs record every single keystroke an employee uses on their computer – including passwords.

There’s no denying that employee management and compliance takes valuable time away from focusing on strategic growth and exposes you to huge financial risk if not handled to the letter of the law. With more than 60 employment-related governmental regulations, compliance alone is a full-time job.

This is why thousands of business owners choose to hire a Professional Employer Organization, or PEO, to save time and money. Not to mention that a PEO provides expertise in an otherwise confusing arena: employment law. If you need to conduct an employee investigation, it is highly recommended that you consult your PEO in advance or contact an attorney that practices employment law.

For more information on workplace investigations or a specific scenario, contact PEO Advantage. And don’t forget to join us next week as we take a look at “general searches” and their limitations.