Investigations, Done Right, Won’t Cause a Workers’ Comp. Problem

The Massachusetts Appeals Court issued a ruling on October 18, 2013. that an employee could not collect worker’s compensation for a stress injury arising from a workplace investigation.  The case, Upton’s Case, is discussed below.

What You Need To Know.  Done correctly, an investigation into employee misconduct that causes an employee to leave work with a stress related injury will not support a workers’ compensation claim.  However, a poorly handled or abusive investigation, could be the basis for a claim.  So, before beginning an investigation into employee misconduct, you should review the matter with counsel to ensure your plan and methods are acceptable.

This case exemplifies every HR persons worst nightmare.  You take legitimate steps to investigate misconduct.  You give the employee who is the target of the investigation a chance to explain.  You allow the employee to bring a representative to the interview.  The interview shows evidence of wrong doing, and shortly after the interview the employee goes to the hospital with heart trouble.  The employee then files a claim for total incapacity and claims he cannot return to work.  Are you responsible for this claim?

The Massachusetts Appeals Court recently said no.  The Massachusetts Workers’ Compensation statute says that

no mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.  G. L. c. 152, § 1(7A).


The Court held that this language also covered all the procedural steps leading up to a “transfer, promotion, demotion, or termination.”  Therefore, an employee cannot collect workers’ comp. for mental or emotional injuries caused by legitimate interviews, investigations, performance reviews, discipline, etc.  The Appeals court felt its ruling would respect “the legitimate efforts of the employer to regulate competence and integrity at the workplace without risk of workers’ compensation liability for emotional consequences of good faith supervision.”

There is, however, a very important factor of which you must be mindful.  The Court said that employers “may justifiably inquire into complaints or suspect behavior.”  In order to be protected from workers’ compensation liability, your actions must be legitimate and in good faith.  The statute makes clear that the personnel action must be “bona fide.”  The employer cannot be acting with the intention of causing emotional distress.  The Court noted favorably that the employer in this case maintained “a published set of standards and procedures governing departmental investigations.”  While a legitimate, respectful investigation will be protected from liability, a poorly managed or abusive investigation could give rise to a workers’ compensation claim or other lawsuit.  For this reason, you should consider bringing in an independent, experienced workplace investigator to handle investigations.  Supervisors who do the investigation may be seen has having a personal bias against the accused.  An employee can more easily argue that a supervisor has been out to get the employee and the investigation is the final act in a series of illegitimate actions.  With an independent investigator like EmCo Consulting, it will be much harder for an employee to argue that the investigation was abusive, in bad faith, or an attempt to emotionally harm the employee.  

If you need to investigate employee misconduct, please contact EmCo Consulting, for help in reviewing your investigation plan.  Even better, let EmCo quickly and professionally handle your workplace investigations so you can focus on your business.