Workplace Investigations- Part I
Many businesses find themselves having to conduct workplace investigations for many different reasons—from harassment to conduct-related issues. Knowing how to conduct a thorough investigation is key for reducing the amount of liability to which employers expose themselves. In this two-part series, we will explore the best practices for conducting a workplace investigation. In this first installment, we will talk about some of the things that an employer should know ahead of time, before an actual complaint necessitating an investigation is made.
Understand the goal of the investigation.
Before conducting an internal workplace investigation, it is important to determine the purpose of conducting these investigations—to determine what actually occurred (uncovering of facts) in the situation that is being investigated in order to make a workplace decision. Using this information, the company can properly show that it has done its due diligence to understand the facts of the situation under investigation. It also gives the company the opportunity to take action as necessary, limiting the liability for the company and managers involved.
Once the HR contact receives the complaint, he or she should then make an assessment of whether or not an internal investigation is necessary. If no other facts or outside resources are needed to resolve the issue, then the issue may be resolved informally. However, an internal investigation should be conducted if the complainant cannot supply all the facts needed to make a determination.
It is important to receive the complaint in an unbiased manner. Sometimes claims are made out of spite or to retaliate against a supervisor for identifying performance deficiencies or providing disciplinary action. However, until the claim is fully and carefully investigated, conclusions about guilt or innocence should not be formed.
Throughout the process, strong consideration should be given to the question, “How will the evidence and overall process be viewed by a neutral third party if a charge or lawsuit results?”
Be timely with your response.
Investigations are typically a result of issues that are fairly sensitive in nature. This requires employers to address the situation as quickly as possible. If a complaint is filed, supervisors should immediately report any complaints to the HR contact within the company. All supervisors and managers within the company should be properly trained to assume personal responsibility for contacting the HR contact within the company if an employee files a complaint with them. Be aware that formal complaints are not necessary to trigger an investigation. Once a supervisor or HR contact is aware that possible misconduct has occurred, even if no complaint is filed, an investigation should be started. The more a company delays in addressing an issue, the higher the risk that they jeopardize their credibility with their employees.
Another key reason for prompt action is to determine whether any action needs to be taken prior to conducting the investigation. If there are any risks to an employee’s health or safety, paid suspensions or temporary reassignments may be necessary to provide interim relief during the process. It is important to remember to avoid taking any negative action against the complainant (such as an involuntarily transfer), as this may be seen as retaliation.
The more quickly the employer takes steps towards the investigation, the more likely they can preserve any relevant evidence and enable witnesses to more accurately recall the facts of what took place. If there are unavoidable delays in the process, document the reasons for such delays, and be sure to inform the concerned parties of the results once the investigation is complete.
Take proactive steps to avoid retaliation.
It is imperative that anyone involved in the investigation, including interviewees, supervisors, etc. should be properly informed that the employer will not tolerate any form of unlawful harassment or retaliation against the individual who made the claim or any of the interviewees who participated in the investigation. A statement that the employer will not allow retaliation to occur should begin well before any investigation. It should be included in your handbook as well as being talked about in any trainings on harassment that you may conduct. It should also be properly documented in each interview during an investigation that this statement was made. All representatives of the employer should be aware that this includes any behavior or conduct that could be viewed as retaliatory, regardless of whether or not that was the actual intent.
Make no promises of confidentiality.
Often, employees will make a complaint but ask their supervisor not to take any action at that point in time or ask for their name to be kept confidential. Typically, this is out of fear of retaliation. It is important that the supervisor or HR contact knows before any complaint is lodged that an absolute promise of confidentiality cannot be made. They should explain to any employee with such a request that the company will do everything possible to keep the matter confidential (on a need to know basis), but that the company faces legal liability if it doesn’t investigate issues as they are brought to management’s attention. This is the perfect time to reinforce the prohibition of retaliation within the company and inform the employee that they should report and retaliation immediately.
Having these general best practices in mind will help any employer to be better prepared should the day come that an employee files a complaint. Next month, in the second part of this series, we will walk through the actual steps of conducting an investigation.