Thursday, February 19, 2015

Tips for Conducting Successful Workplace Investigations

Maybe this has happened in your organization: Joanne has her annual evaluation, conducted by her Department head. The evaluation proceeds fairly well, with a few disagreements about her supervisor’s comments. At the end of the meeting, the Department Head asks Joanne whether she has any issues to talk about. Joanne hesitates but then launches into a story about her supervisor Carl. She says that he invades her “personal space” when he talks to her; frequently leaning over her at her desk.  She reports that he also had started making comments with sexual overtones and occasionally puts his hands on her shoulders from behind (a la Joe Biden!) and keeps them there for what she describes as an uncomfortable period of time. She sums up  her remarks by saying “he’s creepy and everyone knows it”.  She pauses again and then says to the Department Head “Please don’t tell him that I said these things. Maybe it’s nothing and I don’t want to start a big thing.”

The Department Head feels conflicted. Are Joanne’s complaints genuine or is she just angry about Carl’s negative comments on her evaluation. Does she owe Joanne the confidentiality that she requested? Should she just ask around about Carl without mentioning anything in particular?  These situations seem tricky but they really are not. Joanne has described behavior, which if accurate, may meet the definition of hostile work environment.

The problem is that the employer is considered to be on notice as soon as the supervisor is put on notice and therefore supervisors need to know what to do with these complaints when they come in.  It is often the case that supervisors either fail to take the complaint seriously or fail to adequately address the employee’s concerns.  Complainants might nonchalantly inform their supervisor of workplace misconduct, telling their supervisor that they don’t want the alleged offender to get in trouble or ask their supervisor to keep their name confidential. However, supervisors should inform the complainant of the organization’s policy to investigate complaints of workplace misconduct and make no guarantees of confidentiality.  Supervisors should not take these complaints lightly and should instead take immediate action.

First and foremost, employers should have a clear and effective procedure for how an employee can complain.  This procedure should identify at least two avenues an employee can take when complaining, whether that involves speaking directly to that employee’s manager, calling a hotline, or reporting the harassment to the human resource or legal department.  This complaint procedure should be disseminated throughout the workplace and employees should be asked to acknowledge in writing the receipt and understanding of the procedure.   Employers will avoid liability if they prove the employee did not take advantage of any of the detailed and disseminated complaint procedures.

With a defensible policy and procedure in place, an employer must then conduct an investigation that not only results in the appropriate corrective action, if any, but is defensible should a claim arise. Here are nine tips for conducting a successful workplace investigation:

1.  Decide whether to investigate
Always err on the side of investigating. If the behavior complained of, if accurate, would violate an established policy or law, an employer may in fact be obligated to conduct an investigation.

2.  Take prompt action if the situation calls for it.
Not only should the investigation begin immediately, but employers should consider a temporary measure of separating employees while the investigation proceeds.

3.  Choose an investigator.
Employers might want to designate an investigator outside of the organization, especially if the alleged offender is a higher-level employee. This results in a greater level of trust in the outcome, as an outside investigator is presumed to have less bias for or against the involved employees. Remember the pros and cons of using your corporate counsel for this purpose, though.

4.  Collect documents and other evidence.
Examples of this might be employee personnel files, emails between the alleged offender and complainant and any memos, discipline or evaluations of the involved individuals.

5.  Conduct interviews.
Interview complainant, witnesses, and the alleged offender, in that order.  Of course you have to disclose the name of the complainant to the alleged offender, but you should also caution him or her of the perils of retaliatory actions. Prepare a written summary of each interview and ask the witness to read it and if it is accurate, to sign it.  Of course, if it is inaccurate, or is missing vital information, ask the witness to correct it and then sign it. This “locks in” the statements of the witnesses and records their reported information for the future, when their memory of the situation may have faded.

6.  Evaluate the information.
We always suggest that an employer first evaluate whether the allegations of the complainant are substantiated or unsubstantiated. Remember to only consider first hand knowledge and never consider rumors or second hand stories.  Next, consider whether substantiated allegations amount to a violation of the law or a violation of policy. Actual unlawful behavior generally calls for severe discipline. It is always, of course, important to consider the employment record and tenure of the violator.

7.  Take necessary action.
Remember to consider actions taken in similar situations, in an attempt to be uniform in action, but also considering that no two situations are identical. Take the action swiftly to ensure that the complaint doesn’t languish at these last steps.

8.  Draft an investigative report.
This is an invaluable document which includes a description of the entire investigative process, a summary of the information gathered and the conclusion reached by the investigator. Attach the witness statements. The report evidences that the employer discharged its legal obligation.

9.  Follow-up.
One of the most important, and often the most forgotten, steps an employer must take after a workplace investigation is concluded is follow up with the complainant.  Employers might think that they don’t need to follow-up with the complainant if the investigation was inconclusive, however, employers should follow-up with the complainant regardless of the result of the investigation. Some employer policies allow for the complainant to have a copy of the investigation report.  If the employer’s attorney has prepared the report, it may be a privileged communication, but in any event, the investigation is not concluded until the complainant receives a follow up report.

Conducting thorough workplace investigations in response to allegations of workplace misconduct is vital to protect employers from suit.  Employers should train their supervisors and managers to be sensitive to situations where employees describe possible workplace misconduct but maybe don’t label their report as a “complaint”.  Employers often will avoid liability for these types of claims with a good policy and procedure in place, a complete investigation and follow up, and never promising confidentiality.