Employee Rights: What Every Fraud Examiner Needs to Know

The phrase "getting off on a technicality" is well-known in the criminal law arena. If a law enforcement officer is found to have violated the rights of a suspect during a search or arrest, the suspect could walk free, regardless of his guilt or culpability. That same concept applies in the employment law setting as well.

For example, I was recently involved in a case involving an employee in a highly safety-sensitive position who was terminated for failing an alcohol screening. At the arbitration, the employee freely admitted to having consumed a 12-pack of beer prior to reporting to work. The employee was involved in an altercation on the job and was ordered to immediately go for the screening, which he couldn't pass.

However, the employee, as a union member and a public employee, was protected by union contract, civil service rules, statutes, and the U.S. Constitution. His supervisors, when ordering the alcohol screen, had failed to follow the technical rules governing screening. This employee prevailed on the technicality, triumphantly returning to work with a year's worth of back pay. Both supervisors were later disciplined by the employer who was quite irritated at having to sign a check for the back pay.

If you're asked to investigate employee misconduct, you'll need to know the laws that limit or even prohibit certain types of investigations. If you don't, you could become embroiled in some nasty courtroom battles.