How to Conduct a Workplace Investigation While Minimizing Company Risk
Conducting a prompt, thorough, and well organized work place investigation is an essential component of protecting your company from charges of discrimination and harassment. The best defense against allegations, insinuations and rumors is a well-planned out, well-documented investigation into the complaints of your employees. This article will review some of the most important steps you will need to take in order to minimize employer risk in the face of an employee complaint.
Knowing When an Investigation is Needed
Federal and state laws which prohibit harassment and discrimination in the work place also impose a legal duty on an employer to investigate employee complaints. Even the claims of employees who are habitual complainers need to be investigated if you want to minimize your risk of facing a law suit. You need to treat an employee’s eighth complaint the same way you would treat his/her first.
Sometimes it is obvious when an investigation is needed. When an employee files a formal complaint of harassment or discrimination with human resources, is injured on the job, or claims they are being retaliated against by management, most employers realize the time has come to investigate. However, an employee’s complaint does not necessarily have to come through formal channels such as Human Resources, or even be in writing. If you or your management team become aware through any method or channel that employees believe inappropriate conduct is taking place, or that they are being discriminated or retaliated against, it is time to investigate.
It is important to note that even if there was not a legal duty to investigate an employee’s claims of harassment or discrimination, it would still be a good idea. The failure to investigate an allegation of harassment or discrimination can be used to show that your company has either failed to prevent the unlawful behavior, or even condoned it. On the other hand, a prompt and thorough investigation can be used to limit or avoid liability when an employee makes a claim such as hostile work environment. Further, demonstrating a fair investigative process can build trust and loyalty in your employees. If you find yourself debating whether an investigation into alleged behavior is necessary, as with most things when attempting to mitigate your exposure and risk, it is better to be safe than sorry.
Choosing the Right Investigator
Determining who will run an investigation is a decision almost as important as deciding to conduct one in the first place. It is important that your investigator be thorough, detail-oriented, and above all else, impartial. An internal investigation which is conducted sloppily or with obvious bias can potentially expose your company to more risk than conducting no investigation at all.
There are two competing concerns when selecting an investigator- you want an investigator who is objective and impartial, but who is also familiar with your company and the industry you work in. If you hire a consultant or outside counsel to conduct the investigation, you won’t have to worry about bias affecting the process, but they may also be unfamiliar with your company and thus take longer getting the investigation off the ground. If you have an in-house human resource professional lead the investigation they will be prepared and available to begin right away, but their connection to the company may make it difficult for them to view the facts objectively. Be wary of any potential conflicts of interest when you choose an investigator. The specific circumstances of the complaint and your company will be a big factor in determining which path is right for you- for example, if the complaint involves the Human Resources department directly, or involves executive-level employees, it will be much more difficult for a member of the HR department to run an investigation objectively. Regardless of the specific facts it is important to value impartiality, professionalism, and experience above all else when selecting an investigator.
Making a Plan
Although it is important to respond to complaints promptly, it is never a good idea to rush into an investigation. In the interest of thoroughness and efficiency it is important to put a plan together at the beginning of an investigation. An investigator should determine who they need to interview, what evidence needs to be collected, what documents need to be reviewed, and what the scope of the investigation will be. It is likely that during the investigation, additional names and conduct may be brought up which require further investigation. Regardless, creating a plan which is as comprehensive as possible at the beginning of an investigation will pay dividends as it allows for more efficient scheduling of interviews, reviews, and research.
Preparing For Interviews
Before the interviews even begin, your investigator should gather any physical evidence which might validate or disprove the complaint. Depending on the nature of the complaint, this could range from an e-mail exchange between an employee and a supervisor to photographs of the condition or décor of the workplace. This is important for two reasons. First, your interviews will be much more productive when the investigator is equipped with physical evidence that they can use to disprove false claims or refresh a witness’s memory. Second, after an interview has taken place a wrong-doing employee will have a better idea of what compromising evidence should be hidden or destroyed. Gathering evidence in advance eliminates the possibility that evidence will “accidentally” be misplaced or deleted.
An investigator should also review all documents relevant to the complaint prior to conducting interviews. These documents may include the company’s harassment and discrimination policies and procedures, any previous complaints made by the complainant, any previous complaints made against the alleged offender, and the personnel files of any involved employees.
Another important step to take prior to conducting interviews is one often overlooked as trivial- determining the location where the interview will take place. Employees who are interviewed within the sight and hearing of their co-workers, or even other members of Human Resources who are not actively involved in the investigation, will be less likely to share information. Further, an employee who is willing to disclose something unfavorable about a co-worker may change his mind if he thinks there’s a chance that his admission will spread around the workplace. A quiet, secluded office with no windows, or windows that can be easily covered, is ideal for conducting interviews. For the rare matters so sensitive that even the occurrence of the interview could cause conflict, your investigator may want to consider conducting the interview in an off-site location. The investigator should also plan for the comfort of the interviewee- if the interview is likely to take several hours, supplying water, allowing for bathroom breaks, or providing a break for lunch may be necessary.
It is also important to only interview one employee at a time, as group interviews will often overshadow the truth with whatever opinion is easiest or most popular.
Conducting the Interviews
Convincing an employee to speak openly and honestly about a sensitive subject requires putting them at ease. An investigator should attempt to remove the mystery and tension surrounding the investigative process. Every interview should start out with the investigator introducing himself, briefly explaining the investigation process, and explaining the purpose of the interview.
An investigator can further put an interviewee at ease by explaining an overreaching goal of maintaining confidentiality when possible. Employees being interviewed should be assured that their identity and the information they provide will only be shared with others when necessary. Although the complainant and alleged offender have a right to know the results of the investigation, it should not be spread to other employees throughout the workplace in general. An investigator should not share the results of the investigation with colleagues who are not directly involved. An investigator should also inform the complainant and any witnesses about the company’s policies against retaliation for participating in the investigative process.
Once an interviewee is more comfortable with the situation, the best results are achieved by asking open-ended questions which seek specific facts as opposed to opinion or speculation. The investigator should remain open-minded and impartial, and should not argue with the interviewee or attempt to suggest alternative interpretations of statements or behavior. An investigator should, however, ask for any evidence the interviewee may possess which supports their version of the story, and ask as many follow up questions as needed to clarify murky or confusing subjects.
After an interview has been completed, the investigator should prepare a written summary of the interviewee’s statements for the interviewee to review and sign. This will protect from future claims that the investigator misheard, misinterpreted, or simply fabricated statements during the interview.
Aside from the actual content of the interview, other issues may arise during the interviewing process. Some companies prefer to record interviews, while most employees prefer not to be recorded. Recording devices can make interviewees feel nervous and defensive and will make it less likely that they will be fully open and honest during their interview. A tape recording of an investigative interview is discoverable, and does not include the body language which is so useful to determining the context of a statement. A transcript of a recording can be even worse, as it lacks the relevant tone and inflection of voice. Due to these concerns, it is recommended that an investigator take careful notes as opposed to electronically recording an interview.
The investigator should document everything they are told, given, or discover during an investigation. Detailed notes should be taken during all interviews and later have their accuracy confirmed by the interviewee. Any documents discovered or produced should have the date of production and the investigator’s name marked accordingly. Not only is detailed documentation extremely helpful in the preparation of an Investigative Report, but it is also a clear sign that your company took the complaint seriously and made a genuine effort to address any inappropriate behavior.
Creating an Investigative Report
At the conclusion of the investigation, it is important that the investigator prepare an Investigative Report detailing their findings. This Report serves two key purposes. First, it is a valuable tool for the future. If there are incidents and complaints involving the same employees, future investigators will have a documented history to assist in their own investigation. Second, it is yet another demonstration that your company treats allegations of harassment and discrimination seriously, and took real investigative action instead of paying lip service to an upset employee.
An Investigative Report need not include a recommendation of punishment, or even a conclusion as to whether a wrongful act has occurred. It should simply contain the information obtained throughout the investigation stated in an organized, concise, and easily referable manner. The Report can also include the investigator’s impressions of the credibility of the interviewees, as future readers were not present to form their own opinions. Such a Report should be more than adequate to assist your company’s decision makers in determining what actions need to be taken, if any.
After the findings and investigative report have been submitted to the disciplinary decision maker in the company, it is important for the investigator to follow up. The complaining employee should be notified that an investigation was conducted, and even if the ultimate determination is that no action is required, their complaint was taken seriously. Managers and co-workers who were aware of the complaint and investigation should be reminded that no retaliation of any kind will be permitted. Finally, an in-house investigator should keep track of the frequency and nature of future complaints, watching to see if any sort of pattern or trend emerges.
An experienced employment law attorney should be consulted for all questions or concerns about minimizing your company’s risks while conducting a workplace investigation. Please feel free to contact this office and meet with one of our experienced attorneys about any such questions or concerns.