A survey reported in 2014 by the Association of Certified Fraud Examiners determined that the typical organization loses 5 percent of revenues each year to occupational fraud, which includes employee theft and embezzlement. Although every business owner has the right to investigate and deal with instances that may arise, an accused employee also has certain constitutional rights. Understanding these rights is vital to conducting a fair and legal theft investigation, as well as avoiding redress actions.
The Right to Avoid Self-Incriminating Statements
The Fifth Amendment of the U.S. Constitution, which applies to both civil and criminal matters, says that an accused person has the right to avoid self-incrimination. This means that although an employer can ask a question such as “Did you take money from the register?,” you cannot force an employee to answer. On the other hand, an employee cannot refuse to participate in a theft investigation. This means you can say “You have the right to refuse to answer this question but face immediate termination if you refuse.”
The Right to Refuse a Polygraph
The Employee Polygraph Protection Act of 1988 says that an employee of a private company has the right to refuse to take a polygraph test except during a workplace investigation of an economic loss to the employer by an employee who had access to the property stolen. This limited exception requires that the employer is reasonably sure the employee committed the act and does not require the employee to submit to a deceptograph, voice stress analyzer or psychological stress evaluation. If you do, potential redress actions include equitable reliefs such as reinstatement, promotion and payment of lost wages and benefits.
The Right to Review Records
State laws determine whether an employee has the right to review documents used in an internal investigation. For example, in Wisconsin, an employee has the right to review general employment records, as well as documents used in termination proceedings or other disciplinary actions. However, this right does not extend to records pertaining to a possible criminal investigation or a judicial proceeding. In contrast, in Illinois, as soon as an employer files legal charges based on security records, an employee has the right of review. Review state laws carefully, as violations can lead to monetary penalties that increase each day an employer is in violation. Check the website of your state's labor or workforce development department for current labor laws and regulations.
About Privacy Rights
Although an employee in general has few privacy rights in the workplace, there are some gray areas. For example, while the employer has the right to monitor computer usage and most employee activities, employees have the right to expect privacy when it comes to their bodies. Nolo.com recommends that you involve the police before conducting a body search, as privacy law violations can leave an employer open to monetary and criminal penalties.
- Cornell University Law School Legal Information Institute: Bill of Rights
- Florida Department of Law Enforcement: Criminal vs. Administrative Investigations
- U.S. Department of Labor: Fact Sheet #36: Employee Polygraph Protection Act of 1988
- New Jersey Law Blog: Recent Case Law Under the Employee Polygraph Protection Act: A Practical Review
- State of Wisconsin Department of Workforce Development: Records Open to Employees
- Illinois Association of School Boards: Personnel Records: Understanding the Implementation of the Illinois Personnel Records Review Act
- Nolo: Workplace Searches: Dos and Don'ts
- Cornell University Law School Legal Information Institute: 32 CFR 505.12 - Privacy Act Enforcement Actions
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