Conducting a Workplace Investigation? Make Them an Offer They Can’t Refuse!

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EmpBlog-6.25.2013-WorkplaceInvestigation-GodfatherIn general terms, if an employer suspects one of its employees has violated an important policy, it will likely ask that person to participate in an internal investigation.  But what happens when the accused refuses to cooperate?  A recent case regarding a man that was fired from his position as a Customs and Border Protection Officer with the Department of Homeland Security (DHS) for allegedly refusing to participate in an investigation provides one possible answer.

Prior to being hired as a Customs and Border Protection Officer, Jamal E. Ben Abdallah was living in Tunisia.  A former Muslim, he married an American citizen and converted to Christianity.  He passed a background investigation and was hired subject to his agreement to cooperate in any investigations into conduct that might violate DHS standards.  Thereafter, the DHS received a confidential tip regarding certain officers being involved in a fraudulent marriage and/or holding anti-American views.  The source identified Abdallah as one of the officers.  As part of a subsequent investigation, Abdallah agreed to take a lie detector test that was requested by DHS.  However, the examiner concluded that Abdallah had been deceptive about knowing anything about planning a terrorist attack.  Abdallah refused to complete the test and also refused to participate further in the investigation.  In response, the DHS terminated him from his position.

After being let go, Abdallah sued the DHS for national origin and religious discrimination. His lawsuit alleged that since he was targeted in the investigation, he was being discriminated against for being Muslim.  The court determined that it was the department’s responsibility to follow through with the investigation and that Abdallah should have been willing to cooperate as he had agreed to do when he was hired.

Employers can and should require employees to participate in investigations as a condition of continued employment.  While this case is helpful for employers, employers should proceed with caution as terminating an employee who refuses to cooperate can be tricky business depending on the circumstances of the investigation and refusal.