A recent blog post from Thomas Fox entitled, “Corporate Miranda Warnings and the FCPA,” really got me to thinking about corporate investigations, incident resolution and employee rights. It’s a bit disconcerting to hear about organizations taking a stern stance against employees who are alleged (but not proven) to be in violation of compliance laws and regulations, especially when they compel employees/deprive them of their rights to due process and counsel. Sure, companies are obligated to work toward incident resolution, but they should be careful not to ignore the basic rights of their employees in doing so.
Fox says, “Employees who are subject to being interviewed or otherwise required to cooperate in an internal investigation may find themselves under the dilemma of requiring either (1) cooperating with the internal investigation or (2) being fired for failure to cooperate by providing documents, testimony or other evidence. Many U.S. businesses mandate full employee cooperation with internal investigations or those handled by outside counsel on behalf of a corporation…. Such a corporate policy may allow a company to claim to the DOJ a spirit of cooperation in the hopes of avoiding prosecution in addition to increasing the chances of learning meaningful information.”
It seems to fly in the face of ethical behavior for companies to react in this manner. It’s akin to heavy-handed police interrogation techniques. When an issue arises, protocol should work to protect the company, using consistent, thorough investigation procedures, and to gain incident resolution. That same incident response and remediation process should also work to safeguard the employee, under the assumption that he or she is innocent until proven guilty.
Along with how you manage the initial report of misconduct and the subsequent incident investigation, there is also the potential claim of retaliation, which could lead to even worse issues. The incident resolution process, and your policies regarding employee rights and anti-retaliation, must operate with the same high level of ethics as what was mandated for the employee in question. Otherwise, companies risk having that same brand of ethics shoved back at them.