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  Oracle Tips by Burleson

Gather the Facts and Evidence

Begin the process by compiling the facts and evidence that will get to the truth of what actually occurred. Various methods may come into play for this purpose such as reviewing a completed complaint form  if one exists, interviewing other employees and principals in the case, and use of electronic surveillance cameras, network filters and traps, just to name a few. If the evidence clearly outlines a violation of company policy, then the next step is to address the issue with the employee under review. For a sample complaint form, see Figure 4.1. This form must be reviewed and approved by an attorney concerning all possible legalities.

Some companies hire a third party (attorney) to conduct an investigation of events that occur in the workplace. The Fair Credit Reporting Act (FCRA) 15 U.S.C. 1681 requires that any type of workplace investigation by a third party must comply with consent and disclosure provisions. The Fair and Accurate Credit Transactions Act  (Fact Act) that became law on December 4, 2003, however, has removed this requirement of consent and disclosure during the initial phase of a workplace investigation by a third party for the following reasons:

  • Violations of pre-existing written policies of the employer.

  • Violations of the law.

  • Suspected employee misconduct.

There are certain prerequisites that must be met to exclude the disclosure requirement at the beginning of the third party’s investigation. The report by the third party must only be made available to the employer or the employer’s representative. The report must not be provided to the suspected employee.

If the employer takes any adverse action against the suspected employee based on the third party investigation, then the employer must provide a summary of the investigation to the employee. This summary is a requirement of the Fair and Accurate Credit Transactions Act Adverse action is any action that adversely affects an employee. The investigation summary provided to the employee need not disclose the individuals who contributed to the information gathered in order to protect their anonymity.

Access to the health information and medical records of employees for investigations or any other reason is protected by the Health Insurance Portability and Accountability Act (HIPAA). The U.S. Department of Health and Human Services (HHS) issued the Privacy Rule that implements the requirement of HIPAA. The Office for Civil Rights within HHS is responsible for implementing and enforcing the Privacy Rule that applies to health plans, health care clearinghouses, and to any health care provider who transmits information in electronic form in connection with transactions adopted under HIPPA.

HIPPA protections include health care information that is held or transmitted in any form or media (electronic, oral, or paper) and includes the employee’s:

  • Past, present, or future mental or physical health condition.

  • Health care received.

  • Past, present, or future payments for health care.

  • Health care identifiers (name, address, social security number, birth date).

The above book excerpt is from:

You're Fired! Firing Computer Professionals

The IT manager Guide for Terminating "With Cause"

ISBN 0-9744486-4-8

Robert Papaj


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