Probing for worker misconduct plants legal land mines

It wouldn't surprise me if a certain percentage of readers who merely scan this month's piece do so because they don't see what relevance the topic could possibly have to the practicing veterinarian. I understand completely because, at first blush, it doesn't seem possible that any "investigations" would need to be carried out in an animal hospital and, even if one did need to be done, how complicated could it be?

Sorry, my fellow doctors; it is a new world, and if you will indulge me a few more sentences you will understand what I mean and why you should care.

Employees may use illicit drugs. Some steal money. Others punch fellow employees' time cards. Partners sexually harass employees. Bookkeepers embezzle tax deposits. Veterinarians and their helpers from time to time abuse animals. For every instance where one of these types of behavior occurs, there are a dozen false accusations of such behavior. So where does that put the practicing veterinarian, particularly the practice owner?

Initially, of course, it puts him or her in the position of losing money or having the practice suffer damage to its reputation. In severe cases, co-worker misdeeds expose the owner and sometimes others to the risk of civil suit or criminal prosecution. All of this happens even before a supervisor or the owner becomes involved in attempting to identify and remedy the bad employee's behavior.

In today's world, the liability and cost of actual wrongdoing is only the beginning. The resultant attempt by management to remedy the problem can expose that same owner to even greater potential cost and legal liability.

Bear in mind that under no circumstances may employee impropriety or workplace legal violations be ignored. Nonetheless, if an employee's workplace violations are not investigated and handled skillfully and with a plan, the attempted fix can develop into a nightmare for the owner.

What are these looming risks? A less-than-artfully conducted employee misbehavior investigation carries with it a number of subtle "clinic culture" landmines. However, the legal landmines are fairly clear. Here are some of them:

Destruction of evidence

When the owner of a business begins to look into evidence or complaints of missing cash, product, pharmaceuticals and other property, it is not at all rare for documents and ledgers to turn up missing, too. These business records have a way of becoming mysteriously "doctored." Remember that if a person is willing to commit one felony to satisfy his or her need for cash or drugs, he or she probably won't have a real problem with committing a second crime to cover up the first.

As a result, the development of an order of operations when looking into potential illegal behavior is key. Documents may need to be quietly and secretly sequestered or copied before the first question is asked. This step permits: 1) identification of subsequent document alteration and forging, 2) preservation of the original entries for evidentiary purposes and 3) protection for the practice owners and licensed prescribers in the event that state or federal authorities want to know how medicines were "negligently" allowed to disappear after having been ordered under a DEA number.

Libel and slander

It is an actionable tort (recognized civil lawsuit claim) for a person to state orally or in writing to a third person that an individual has committed a crime (if that is not the case). Therefore, it is a dicey situation when, in a small-business environment, a supervisor tries to get to the bottom of a problem such as missing money or animal abuse.

For example, if Joan reports to you that she saw Kate sadistically kicking a dog when Kate thought she was alone in the kennel room, Joan may be committing slander. If the accusation is accurate and provable, it is merely true. On the other hand, if the accusation is not true at all or the behavior was actually less outrageous than described and/or was somehow justified, slander may have occurred.

When you try to find out more, you need to be pretty delicate in your wording of the "alleged" event when other employees are called into the office for questioning. You must not mindlessly ask, "Were you around when Kate was kicking that shepherd?" If you do, you are opening yourself up to your own potential slander or defamation suit.

You also shouldn't say, "Joan says Kate was beating up a dog yesterday. What do you know about that?" Now you have exposed Joan to the same liability in the event of a potential lawsuit by Kate.

Other complications

Finally, it is critical that the misconduct investigator not forget about the 800-pound gorilla in the equation — the government. If an employee is discharged after an investigation that discharge better be carried out only subsequent to an exhaustive and documented investigation. If an employee is discharged merely because of a strong but unprovable suspicion of illegal conduct, the least unpleasant of the potential results could be a successful claim for unemployment benefits.

The employer probably can't escape the unemployment claim. If employee theft is to be a defense to the unemployment claim, the evidence darn well better be there and it better have been obtained appropriately.

Furthermore, if such an unproven accusation is the tacit reason for a discharge, many employers will not state such in the employee's personnel file precisely because they did not carry out an adequate investigation to prove the accusation. Then, even if a bogus reason is given to the employee just to "get them out the door so we can get back to normal around here," there may well be a subsequent lawsuit by the discharged employee for wrongful termination. He or she may demand reinstatement and/or back wages, possibly even attorneys' fees.

By the way, when you are deposed in the subsequent unlawful-discharge lawsuit, will you be ready and willing to commit perjury to cover up your actual (inadequately substantiated) reason for firing the employee?

In a future article, I will detail some specific steps that should be taken in carrying out an employee misconduct investigation.

For now, just remember that it is vital to call upon common sense, forethought and thorough documentation in approaching an investigation that potentially can spin wildly out of control.

Dr. Allen is president of the Associates in Veterinary Law P.C., which provides legal and consulting services to veterinarians. Call (607) 754-1510 or visit info@veterinarylaw.com