Spilled Milk to “Spoliation”: Investigating Workplace Incidents

By John Price
A customer falls near the entrance to your business.  An employee complains that she is being sexually harassed by a coworker.  What do you do?

These are just examples of incidents which could occur in the life of any business.  Yet, many employers have no plan for responding to an accident or investigating an employee complaint.  When a workplace incident occurs, the health and safety of all involved is the first priority.  But the employer’s next thought should be to act immediately to preserve the evidence.

Failing to preserve evidence can turn what should have been an open-and-shut case into a swearing contest.  Even worse, if the injured party sues and critical evidence has been lost, the judge can tell the jury to assume the missing evidence would have supported the plaintiff’s case. “Spoliation” is a term courts use to refer to the destruction or loss of evidence.

Don’t let spilled milk turn into “spoliation.” The time to plan for an emergency or a crisis is before the crisis occurs:

1. Develop a crisis response plan that includes preservation of evidence. Make sure your employees know the plan.
2. Was the incident recorded by a video camera? Make sure the data is not overwritten or lost.   If you have a camera that was not focused on the area of the incident, preserve the video anyway.  It could show important details that occurred just before or after the incident.
3. Limit written communication about the incident. However, retain any memos, e-mails, or reports that do exist.  Don’t delete or throw anything away!
4. Interview both third party and employee witnesses.

For issues raised by employees:

1. Have a good avenue for employee complaints. If an employee has a problem with her direct supervisor, make sure there is an alternative avenue for her concerns.
2. Don’t ignore a complaint—investigate it.
3. Identify and interview key witnesses while preserving any relevant documents.
4. Make sure the investigation is objective and fair. The person leading the investigation needs to be unbiased.  Don’t put someone too close to the situation in charge.
5. Document facts as opposed to opinions or conclusions.
6. Protect confidentiality to the extent possible.
7. Do not retaliate against the complainant or any witnesses.

Following a workplace incident—whether it involves an accident, an injury, or an employee complaint—it is vital to get the facts and to preserve the evidence.  An experienced lawyer—someone on the “outside” but who has your best interest at heart—can help you do that.