Conducting an investigation of an employee is akin to handling a double-edged sword. Used properly, an effective investigation can correct employee misconduct, reduce the risk of lawsuits and, if a lawsuit is inevitable, tremendously assist the employer's defense. A safety professional, however, must use the investigation tool carefully. A careless investigation could result in a lawsuit by the disgruntled employee and, in that lawsuit, provide evidence that can be used against the company. Lawsuits based on or with facts that reveal a botched investigation can cost the company thousands to millions of dollars. To that extent, an employer should arm itself effectively to conduct a thorough and objective investigation based on the facts and that comports with state and federal law.
If an employer is conducting an investigation, the potential for a lawsuit could be close behind. In some cases, an employer's duty to preserve documents related to the subject matter of a potential lawsuit may be triggered. An employer should be aware of what triggers this duty in hopes of avoiding spoliation claims. The threshold question in the spoliation analysis is whether the spoliator was under an obligation to preserve the evidence in question.1 A duty to preserve evidence only arises when a party knows, or reasonably should have known, that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim.
