Howard Levitt: Six steps to defend yourself against a false allegation at work

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A stream has become a torrent. Executives, usually males, accused of what is often little more than political incorrectness. Or of something more serious but misperceived or baseless, often for revenge or political advantage at the company in question.

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And then their tortuous path begins, leading almost inevitably to their departure.

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Someone makes an allegation, let us say, of harassment, and an investigator is called in.

The accused is suspended, not permitted to enter the premises, while the “investigation” is going on. Their fate becomes, almost invariably, a foregone conclusion, regardless of the facts.

What is not understood is that the presumption of innocence does not apply. Instead, there is the assumption of guilt.

A suspension is not a neutral act and few suspended non-union employees ever return to their positions.

Even if the allegations against them are kept confidential, the fact of their suspension results in their co-workers and customers assuming that they must have done something terribly wrong — and that they are guilty of whatever they suspect is alleged — or, as the rumour mill accelerates, of worse.

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Their position in the organization becomes untenable and, even if permitted to return, it is to a poisoned environment replete with suspicion, humiliation and the loss of any prospect of future job security, let alone any path to promotion. More often, if they return, they look for another job and leave. In other words, the accuser accomplishes precisely what was intended.

For these reasons, the length of the investigation determines its result. Although most investigations can be properly conducted in a couple of days, the standard investigation these days drags on over weeks and months. Why is this?

After all, how long does it take to take the accuser’s story, put it to the accused and then speak to whatever witnesses there might be (if witnesses even exist) to the event or events in question and then record their findings. In an extreme case, a week. And it is vital to the reputation of the person accused that the investigation be concluded quickly. But that is not in the interest of the investigation industry.

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Avoid contact with the accuser

Of course, most of the time, there is no good reason for the person investigated to be suspended while it is ongoing. They simply can be asked to avoid contact with the accuser and not discuss the issues with anyone so as not to influence potential evidence. This should be required of the accuser as well.

But the common approach of bringing in an outside investigator, who does not know the company, the people involved or the polices purportedly breached, means considerable lost time before the investigator even commences and more time digesting what they have heard and identifying who the relevant witnesses might be.

The more insidious aspect of this is that outside investigators have an economic incentive to drag the investigations out as long as possible to justify their fees, often six figures. This is one of the many reasons why I recommend, almost invariably, that companies use their own internal personnel and not waste money on outside investigators. And if you are going to use an outside investigator, never use a lawyer. Using a lawyer permits the employee to bring their own lawyer into the mix and have their lawyer involved in any interview, resulting in less effective fact finding. Also, the skills lawyers learn (i.e. cross-examination) are antithetical to the skills required for neutral fact-finding. So if you wish to use a lawyer, use a retired judge experienced in getting at the truth and with the respect of all stakeholders, unlike a legal hired gun with no credibility.

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Investigations require little in the way of legal knowledge and are boondoggles, much of the time, for those conducing them. And the workplace investigator industry has become increasingly “woke” and left wing, often combining DEI training as part of their offerings to their clients.

The problem is that these idealogues come to their exercise with preconceived notions, creating further unfairness to those involved. I read one investigation report recently, where the investigator, in her over 100-page report, refers to the accused male executive’s “white fragility” and inherent “white male privilege,” which made clear that this accused executive had no prospect of a successful finding from this ideologically driven “investigator.” And this, despite the mountain of evidence supporting his position.

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Through the lens of this “investigator,” his very identity ensured his guilt. And the workplace investigation industry is riddled with these types. The problem is that companies then find it safest legally to adopt the recommendations of the investigator that they just paid so much money to, without considering the biases they bring to the exercise.

So what do you do when you are accused and subject to investigation, when you have actually done little or nothing objectively wrong?

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6. Monitor the impact the investigation itself has had on you in order to buttress a claim for constructive dismissal, including punitive damages and damages for mental distress for the impact of the investigation.

If misconduct is alleged, an employer must ask the relevant questions of the relevant parties to determine whether action should be taken. But that is a long way from the type of “investigations” that have become de rigueur, investigations which, as of late, have become akin to an ideologically driven Salem witch hunt, causing more corporate damage than the alleged infraction and enriching the “investigators” at the expense of everyone else in the process.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.