Tips for Finding Former Employees Who Are Key Witnesses

 

By Lisa Nagele-Piazza, J.D., SHRM-SCP, and Allen Smith, J.D. March 25, 2019
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This is the third in a three-part series of articles on contacting former employees for business reasons. Today's article explores what to do when a former employee is a key witness and can't be reached. The first part discusses what to do with a returned paycheck or W-2 form. The second part explores reasons that employers may want to maintain a positive relationship with workers post-employment. 

 

HR professionals often must interview workers during investigations into harassment and other workplace complaints, and they may want key witnesses to testify in court during related lawsuits. So what can an employer do if a former employee disappears without a trace before testifying? Here's what employment law attorneys said.

"This comes up a fair amount," said Jennifer Betts, an attorney with Ogletree Deakins in Pittsburgh. Sometimes, the easiest way to find a former employee is through an Internet search, since many people are easily located by their social media footprint, she said. "In other instances, former employees can be found through public records and property searches." 

The proliferation of social media has made disappearing much more difficult, but employers must be careful about the methods they use to find someone through social media, said Eric Stevens and Rachel Rosenblatt, attorneys with Littler in Nashville, Tenn., in a joint statement.

Employers may view a former employee's publicly posted information, but some state laws prohibit employers from requiring workers to provide their personal social media passwords or using misleading tactics to friend employees online so they can see privately posted information.

Potential employers who ask for employment verification may also provide useful information, they said.

But if all else fails, employers may want to hire a private investigator to find a former employee.

The employer may be able to secure a former employee's cooperation through a subpoena or other means, said Isabel Crosby, an attorney with DLA Piper in Dallas. But challenges may arise if the employee is not willing to cooperate, cannot be located or is outside the range of subpoena power.

Unfortunately, there is not much an employer can do in these situations, so the employer may need to move forward in court without the former worker, said Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J. 

Prepare Prior to Departure

Businesses should update employee contact information at least once a year and again before a worker leaves the company, Stevens and Rosenblatt said, stressing the importance of ensuring the accuracy of a departing employee's contact information. "This is especially true with e-mail addresses, since employees will no longer have company e-mail access," they said.

When an employee leaves the company, employers should consider whether they might need help from the departing employee in the future—whether that means assisting in a legal proceeding or an ongoing investigation, or transitioning a project to a new employee, Crosby said. In the case of an investigation, the employer may also consider securing sworn testimony from employees before they leave, she added.

[SHRM members-only how-to guide: How to Conduct an Investigation]

In some circumstances, including the cooperation provision in a severance agreement may be appropriate, and, if so, the provision should address the employee's duty to inform the employer of any change of address or contact information, Stevens and Rosenblatt said.

Maintain Confidentiality

Without discussing an investigation or lawsuit, an HR representative might ask the former employee's colleagues if they have the person's current contact information, said Nadine Abrahams, an attorney with Jackson Lewis in Chicago. Because the allegations and details of the matter may be confidential, she said, telling others why HR needs to speak with the person could be dangerous.

"Telling others that the former employee may be a witness in an important case could cause problems for the former employee," she said. For instance, "If someone misunderstands and believes the former employee did something wrong and is involved in litigation, the former employee might get fired [from his or her current position] and then sue you for interfering with new employment."

HR should record all attempts to locate the former employee, she added. "If the person is truly an important witness, you may need to prove that you made efforts to contact him or her."

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