Wednesday, September 18, 2019

When investigating misconduct, you don’t have to overturn every stone, but you also can’t ignore the obvious ones


Unless you're a wine nerd, you likely haven't heard about the cheating scandal that has rocked the Court of Master Sommeliers, the nonprofit governing body that administers the group’s exams.

For the uninitiated, the Master Sommelier diploma is the highest distinction a fine wine and beverage service professional can attain. To obtain the diploma, one must pass a three-part exam that includes an oral theory examination, a deductive blind tasting of six wines, and a practical wine service examination. The exam is so hard that there are only 262 professionals worldwide who have ever passed.

The Court of Master Sommeliers invalided 2018's Master Sommelier exam in its entirety after it was discovered that someone gave answers to the blind tasting portion of the test to at least one candidate. The board of the Court of Master Sommeliers conducted its own internal investigation of the allegations of cheating, issued a highly redacted report of its finding, and considers the matter closed after invalidating the entire exam.

What we also know (thanks to this report by Newsy), is that a board member had emailed exam candidates on the day of the exam from his employer's email account, and that the board (which conducted its own investigation into the cheating scandal) did not ask its board member's employer to disclose the emails. And that's a huge problem for the Court of Master Sommeliers in the certain-to-be-filed lawsuits by exam takers who passed the test without cheating.

Let's translate this story into the world of employment law. Suppose an employee claims her supervisor sexually harassed her by sending her explicit text messages. The accused supervisor says, "It wasn't me; someone must have spoofed my phone number. Here's my iPhone and the passcode. Do whatever you have to do to confirm that it wasn't me." Instead, however, all you do before firing the supervisor is review the texts from the victim's device; you never do anything with the supervisor's device to confirm or disprove his claim that someone spoofed his phone number.

That employer has a huge problem when the supervisor sues. An employer can rely on reasonable investigation to justify whatever corrective action it takes as a result. But the key word is reasonable. A reasonable investigation need not overturn every stone, but it can’t ignore the obvious ones. When it's claimed that some piece of evidence will help confirm or deny the allegations, you have to follow that lead. Otherwise, your investigation and its outcome have no credibility. And without credibility, you will have a massive problem defending the investigation in litigation.

* Image by OpenClipart-Vectors from Pixabay

Real Time Web Analytics