The Ultimate Guide to Conducting Workplace Investigations
By: Peter Sayegh, Esq., PMP, SHRM-SCP
Summary
Workplace investigations are critical for maintaining a fair, compliant, and harmonious work environment. As professionals, understanding the nuts and bolts of conducting these investigations is essential for both legal compliance and fostering a positive workplace culture.
This guide provides HR professionals with a comprehensive step-by-step approach to conducting effective workplace investigations. Readers will learn:
Why Investigate?
When to Investigate?
How to Avoid Bias.
How to Conduct a Thorough Investigation Process.
What Post-Investigation Actions Need to be Taken.
I. Why Conduct a Workplace Investigation?
Workplace investigations are mandated under various laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the Sarbanes-Oxley Act, and state and local nondiscrimination laws. These investigations are essential to address complaints related to harassment, discrimination, retaliation, safety, and ethics. Employers are required to take appropriate corrective actions to ensure illegal actions and behaviors cease immediately.
Beyond legal requirements, addressing complaints promptly enhances the credibility of both the investigator and the employer. Investigations help identify and resolve internal problems before they escalate, protecting the organization from potential lawsuits.
Effective workplace investigations are about more than just following procedures—they're about ensuring everyone's protection and well-being. Prompt, thorough, and efficient investigations are the cornerstone of a safe and respectful work environment.
II. When to Investigate?
a. Are the Facts Disputed?
Determining when to initiate an investigation depends on the presence of disputed facts. If there are conflicting accounts of an incident, an investigation is necessary to establish the truth. However, if the facts are undisputed and clearly violate workplace policies or laws, immediate corrective action can be taken without an investigation.
b. What Constitutes an Employee Complaint?
Careful listening is crucial to identifying employee complaints that may require investigation. Not all complaints are explicitly labeled as such. While some employees might directly title their emails as "complaints," others may raise issues more subtly or indirectly, necessitating a nuanced approach to determine whether an investigation is warranted.
i. Recognizing Employee Complaints.
Employee complaints can arise in various forms and contexts, often without the explicit intent of making a formal report. Here are some real-life scenarios:
Indirect Reporting: Employee A mentions to a supervisor that Employee B sent an inappropriate and suggestive instant message to Employee C. Although Employee A is not the message recipient, this indirect report still constitutes a complaint.
Observational Reports: Employee A reports that Employee B talked down to Employee C. This observation, while not a direct complaint, needs to be treated as one.
Perceived Discrimination: An employee reports being passed over for a promotion and believes it may be due to their race. This perception of discrimination is a serious complaint requiring investigation.
Policy Violations: A department supervisor suspects an employee is misusing a corporate credit card, potentially violating company policy.
In each of these situations, the answer to whether they constitute an employee complaint is a resounding yes. Even if the issue seems minor or indirect, it should be treated as a complaint and investigated accordingly.
Peter Pro Tip:
Here are some key tips to help you identify when an issue should be treated as a complaint and potentially investigated:
Assess for Legal Risk: If the behavior or issue could lead to the company being sued, it should be treated as a complaint. This includes pay issues, promotion disputes, discrimination, harassment, and retaliation. Such matters warrant immediate evaluation to determine the necessary actions.
Evaluate Impact on Work: Even if the issue does not meet the threshold of legal action, consider whether it affects employees' ability to perform their jobs. Any behavior that hinders job performance is significant and should be addressed.
Consider the Scope of Impact: Assess how many employees are affected by the behavior. A problematic manager or employee impacting a large number of people can create a toxic environment, increasing the likelihood of serious issues arising.
Monitor Morale: Pay attention to how the behavior impacts overall morale. While discrimination or retaliation can significantly harm morale, even less severe issues that create dissatisfaction or malaise can negatively affect employee engagement and productivity.
ii. The Importance of Investigating All Complaints.
Investigating every complaint, no matter how minor it may seem, is essential. While some complaints might not immediately pose a liability risk, they can still impact the work environment negatively. A poor culture, where issues are ignored or downplayed, can lead to more significant problems, including discrimination, harassment, and retaliation.
Even seemingly innocuous complaints can fester and escalate, leading to serious legal and cultural issues within the organization. As practitioners, our goal is to prevent liability and foster a positive work environment. Addressing all complaints, regardless of their perceived severity, is crucial in maintaining a healthy workplace culture.
Note, this doesn’t always mean a full-scale investigation; it could range from a simple inquiry to an extensive, multi-party investigation depending on the severity and complexity of the issue. The term "investigation" can vary in scope. It might involve a quick email or phone call for minor issues or an in-depth, long-term investigation for complex cases involving multiple parties and sophisticated behaviors.
c. Timing of Investigations.
Employers are legally obligated to investigate complaints related to harassment, discrimination, retaliation, safety, and ethics in a timely manner. However, the concept of timeliness can be quite relative, particularly in situations where a party or key witness is on leave, which happens more often than we'd prefer. The deeply unsatisfying answer to the question of what constitutes timeliness is that “it depends.” Fortunately, we have some guidance from the courts on what does not qualify as timely. In the case of EEOC vs. Management Hospitality of Racine, the court ruled that a two-month delay in initiating an investigation was not a reasonable response and was unlikely to prevent harassment from recurring. Thus, the standard that courts generally apply is that the response must be reasonably likely to prevent harassment from reoccurring. EEOC v. Mgmt. Hospitality of Racine, Inc., 666 F.3d 422, 436 (7th Cir. 2012).
d. Avoiding Bias.
Ensuring an impartial and objective investigation is crucial. Bias, both conscious and unconscious, can severely undermine the integrity of an investigation.
The law and guidance from the EEOC mandate that investigators must be impartial and objective, a principle powerfully illustrated in the case Nazir v. United Airlines, 178 Cal. App. 4th 243 (2009). This impartiality is critical because a biased or unfair investigation can intensify existing problems. The case of Mendoza v. Western Medical Center of Santa Ana underscores this, where the California Court of Appeal scrutinized the adequacy and impartiality of workplace investigations, revealing the severe consequences of biased decision-making.
In this case, the court found that the employer’s investigation was deeply flawed and biased. Key witnesses were overlooked, crucial leads were ignored, and the overall approach seemed more intent on quick resolution than uncovering the truth. The investigation appeared to be a pretext for retaliating against the employee for reporting harassment, suggesting the employer was more focused on self-preservation than genuinely addressing the employee’s concerns.
This ruling serves as a stark reminder of the importance of fair and unbiased investigations. The court highlighted that an inadequate investigation could lead to serious repercussions, including wrongful termination and significant damage to an employee’s reputation and career. Conducting thorough and impartial investigations is not just a legal requirement but a fundamental component of maintaining trust and integrity within the workplace.
Peter Pro Tip:
The investigator must be aware of and understand their own biases.
If you recognize that your biases may affect your judgment in a particular situation, avoid conducting the investigation.
If you are suitable for conducting the investigation and have no specific reason to be biased, proceed. However, it is crucial for every investigator to understand how bias influences decision-making.
i. Types of Bias.
There are many types of bias, but the most common one is confirmation bias. This occurs when an investigator seeks out evidence that supports their preconceived notions while ignoring evidence that contradicts them. Being aware of this bias is crucial to ensure a fair investigation. Other biases to be aware of include:
Bias in favor of my employer
Bias against delivering bad news
Bias against repeat complainers or whiners
Bias against employees with performance issues
Bias towards the easy answer/quick case closure
Bias towards majority rule
Bias towards people you like or sympathize with
Bias towards people with power
III. Conducting the Investigation.
Here are the essential steps for conducting an effective workplace investigation:
a. Step 1: Provide Interim Protection.
Employers must take immediate measures to protect the accuser or alleged victim. This may involve separating the alleged victim from the accused to prevent further harassment or retaliation. Actions such as schedule changes, transfers, or leaves of absence may be necessary. However, these measures should not be perceived as punitive towards the complainant, as this could lead to retaliation claims. Employers should seek legal advice before making any decisions.
b. Step 2: Prepare for the Investigation.
Preparation sets the stage for a thorough investigation:
Define the Scope: First, establish the scope of the investigation. This is crucial to avoid veering off course and ensures that you stay focused on gathering the necessary facts. Clearly defining the scope helps you identify the key issues and formulate specific questions to investigate. However, be prepared to shift the scope of the investigation if new information arises. For instance, if an investigation into one employee reveals similar issues with another, expand the scope to include additional individuals or incidents. Consider the following examples of how to frame your investigation:
Example 1: Did Alex Brown falsify expense reports to claim reimbursements for personal expenses? If so, what specific instances and evidence support this allegation?
Example 2: Did Taylor Green engage in inappropriate conduct by repeatedly making unwelcome comments of a sexual nature towards a coworker during office hours?
Evaluate Legal Risk: The level of risk exposure to the company will determine the thoroughness of the investigation. Higher risk necessitates a more detailed investigation.
Internal vs. External: Decide whether the investigation should be handled internally or externally based on the scope and liability exposure. For example, minor issues like an employee being talked down to can often be managed internally, whereas serious allegations such as financial fraud or ongoing harassment might necessitate external investigation by outside counsel. Reflect on how an internal investigation might affect workplace culture and relationships. HR should be a resource for employees, but if HR also conducts the investigation, it might create tension. External investigations can sometimes mitigate these internal issues.
Notify Legal Team: Always notify your legal team of any complaints and investigations. This ensures all actions are documented and legally compliant.
Review Documents: You should review foundational documents, such as personnel files, organizational charts, and any written complaints submitted. However, be cautious not to review too many foundational documents initially, as this can inadvertently bias you for or against any of the parties involved. For instance, knowing that an employee has filed similar complaints multiple times in the past, all of which were not sustained, might lead you to form a preconceived notion about the current case. Maintaining an impartial perspective is crucial for a fair investigation. Identify all potential sources of information, including hard copy files, digital files, emails, text messages, and other electronic communications. Depending on the specifics of the complaint, a cursory search may suffice, but in some cases, forensic experts may be necessary.
Schedule Interviews: Consider where the interviews will take place. The most important factor is ensuring the interviews occur in a private setting. Privacy is crucial for maintaining confidentiality and making the interviewee feel comfortable.
For instance, in the Mendoza case, interviews were conducted in a glass-walled office, which compromised privacy. In the current era, especially with many people working from home due to the COVID-19 pandemic, achieving privacy can be challenging. To address this, include a note when scheduling interviews, asking participants to be in a private area during the interview. Typically, this resolves privacy issues.
Peter Pro Tip:
Consider the comfort of the witness and their ability to leave the room, particularly for in-person interviews. It is recommended to seat the interviewee closest to the door to avoid any perception of physical confinement, which could lead to false imprisonment claims. This practice helps ensure that the interview process is both comfortable and legally sound.
Schedule the interviews during work hours so as not to implicate any wage and hour issues.
Plan the sequence of witness interviews carefully. Typically, begin with the complainant, followed by the accused party, and then any additional witnesses. Interviewing the accused party second, rather than last, helps avoid creating any undue bias against them, ensuring a fair and balanced investigation process.
c. Step 3: Select the Investigator.
Selecting the right investigator is essential. Consider the following:
i. Licensure Requirements.
In many states, workplace investigations must be conducted by a licensed private investigator unless they fall under specific exemptions. Ensure that the investigator you choose meets these licensure criteria or those provided by your jurisdiction. This is crucial because employing an unqualified investigator can lead to significant consequences, including financial, criminal, and State Bar penalties, as well as potential civil liability.
Most importantly, the validity of the investigation could be challenged, particularly if the case escalates to an informal hearing or litigation. This can undermine all efforts made to prevent liability and rectify the behavior in question.
Another important consideration when retaining attorney investigators is to protect the confidentiality of the process and any work product, such as the written report. Ensure you form an attorney-client relationship with the attorney investigator, even though they are providing neutral services rather than traditional legal advocacy.
The case of City of Petaluma v. Superior Court of Sonoma County established that an attorney conducting factual investigations is still performing legal work if they use their professional experience in the process. This relationship can be protected under attorney-client privilege.
ii. Pros and Cons of Hiring an External Investigator.
iii. Key Factors to Consider When Hiring an External Investigator.
If you determine that hiring an external investigator is necessary, consider the following factors:
Experience and Legal Knowledge: Ensure the investigator has the relevant experience and a solid understanding of the law. While they won't be making legal conclusions, this knowledge helps them gather pertinent evidence and ask the right questions.
Testifying Experience: If the case might lead to an administrative hearing or litigation, choose an investigator with experience testifying.
Communication Skills: The investigator should have excellent communication skills, as they will need to interact effectively with all parties involved.
Subject Matter Expertise: Ensure the investigator has expertise in the specific area relevant to the investigation.
Appropriate Scope Management: The investigator should be able to identify the appropriate scope of the investigation, providing good value without going into unnecessary detail.
d. Step 4: Develop Interview Questions.
When asking interview questions, it's important to keep them open-ended to avoid suggesting specific answers. Avoid leading questions and instead use questions like:
Who?
What?
Where?
When?
How?
Tell me what happened.
When did this happen?
Who else was there?
How do you know that information?
This approach is known as the funnel method. Start with broad questions and then gradually narrow down to drill into the details. Look for contradictions to seek clarification. For example, if an interviewee initially states that an incident occurred two years ago but later says it happened two months ago, you might ask, "Earlier you said this happened two years ago, but just now you mentioned it was two months ago. Can you clarify this for me?"
Be cautious in your approach as you narrow down your questions. Sensitivity is crucial, especially when dealing with delicate subjects. Avoid sounding judgmental, particularly when asking "why" questions, as they can make the interviewee defensive. Instead of asking, "Why did you do that?" try, "Can you clarify that for me?" or "Can you give me some more context?"
Being trauma-informed is also vital in handling sensitive topics. This involves understanding and responding to the effects of trauma, and there are specialized trainings available to develop this skill set further. For instance, if an interviewee appears distressed when recalling an event, acknowledging their emotions and offering breaks can help in maintaining a supportive and respectful interview environment.
e. Step 5: Conduct Interviews.
Interviews should be conducted impartially and objectively. The investigator should inform all parties of the need for an investigation and explain the process, emphasizing confidentiality to the extent possible. During interviews, take detailed notes, look for inconsistencies, and seek additional evidence and witnesses.
i. Your Opening Statement.
Don't make any promises of an outcome, such as ensuring the wrongdoer is brought to justice.
Avoid statements or behaviors that might imply a determination has already been made.
Refrain from making accusations against the witness or any other party during the interview.
Remind the witness that retaliation for reporting an issue or participating in the investigation is strictly prohibited by the employer.
ii. Confidentiality.
Advise the witness to keep the matter as confidential as possible and to refrain from discussing it with anyone other than the investigator. Confidentiality is crucial in workplace investigations. While absolute confidentiality cannot be guaranteed, employers must protect the confidentiality of employee claims to the fullest extent possible.
Explain to all parties that information will be shared on a "need-to-know" basis to conduct a thorough investigation. It's important to strike a balance, as overly broad confidentiality rules can unlawfully restrict employees' rights to discuss employment terms and conditions. Emphasizing the importance of discretion helps maintain the integrity of the investigation while respecting employees' rights.
iii. Explain the Role of the Investigator.
Explain that you are representing the employer and are attempting to determine the facts surrounding an employee complaint.
Make it clear that you are not representing any particular person but are there on behalf of the employer to understand what happened and why.
Mention the possibility of having two people in the interview – one to engage and build rapport with the witness and another to take notes and catch details that might otherwise be missed.
iv. Documenting the Interview.
Documenting the interview is a crucial part of the investigation process. There are several ways to do this:
Recording: You can record the interview using audio or video equipment.
Note-taking: Take handwritten or typed notes during the interview.
Note taker: Have a dedicated note taker accompany you to the interview. This is a common practice in many offices and provides invaluable support.
The key is to maintain consistency. Follow your organization's established practices for note-taking and documentation. There is no single "right" way to document interviews, and different investigators may have different preferred methods.
For external investigators, it's often best to consult with the client on their preferences for recording interviews, as practices can vary widely.
Most importantly, ensure that you retain all documentation related to the investigation. Establish a robust document retention policy to keep records organized and accessible. This is vital because you may need to reference this information again, especially if the issue escalates to an administrative grievance or litigation.
v. Can Employees Have a Representative Present?
Typically, interviewees should not have outside representation during the interview, although union employees may often have a legal representative present. It is crucial to consider the circumstances and ensure that interviews are conducted with minimal external influence to maintain the integrity of the information gathered.
vi. Investigator Etiquette.
It's important to thank the witnesses for participating. This gesture shows respect for the individuals who have taken time out of their day to provide information relevant to the workplace issue, which ideally contributes to a better work environment. Expressing gratitude for their dedication to helping root out behaviors incompatible with workplace policies can improve the quality of the information you receive.
vii. Hostile Witness.
If a witness becomes hostile or unable to continue the interview for any reason, pause or end the interview and plan to reconvene at a later time, such as the following day. We've encountered situations where inappropriate behavior has occurred during a witness interview, and it's essential to ensure no one endures such behavior. If an employee exhibits actions that could be grounds for termination, it's critical not to tolerate any abuse.
If hostility arises, calmly state that it appears the discussion cannot continue at this time and suggest rescheduling. For example, you might say, "It seems we're not in a position to continue this discussion right now. Please let me know when you're ready to reconvene, perhaps tomorrow." Always consult with your client to decide the next steps in obtaining the necessary testimony.
In special cases where you discover ongoing illegal activity or an immediate risk of physical harm to any party, pause the interview immediately and take appropriate action, which may include calling 911. Additionally, consult with an employer representative to determine the appropriate course of action.
f. Step 6: Gather Other Evidence.
When gathering evidence, consider a variety of sources that can be relevant and helpful, such as emails, memos, and letters. These documents are particularly useful for establishing timelines and verifying dates.
However, it's important to assess the probative value of each piece of evidence. Ask how useful the evidence will be for the investigation. For instance, in a case involving allegations that female employees are being passed over for promotions, the HR department may be asked to provide data comparing the promotion rates of male and female employees. If the HR records are not electronically accessible and would require extensive manual searching through archives, the cost and effort might outweigh the probative value of this data.
Additionally, consider whether outside expertise is necessary. In a case involving allegations that Samuel Johnson manipulated financial records, a forensic accountant might be retained to review the company's financial statements and report on any discrepancies. The investigator would then use this report to question Samuel and assess whether his explanations are reasonable and supported by the evidence.
Remember, witness testimony is also a critical source of evidence. During interviews, gather detailed accounts and cross-reference them with the documentary evidence to build a comprehensive picture of the case. For example, interviewing Jane Doe about her observations of the alleged incidents can provide valuable insights and support the overall findings of the investigation.
g. Step 7: Evaluate Evidence.
Now that you've completed your interviews and gathered all the evidence, it's time to weigh and consider the information you've collected. The standard applied in 99% of workplace investigations is the preponderance of the evidence standard. This means that it is more likely than not that the alleged conduct occurred, sometimes described as "50% plus a feather." This standard is less stringent than the clear and convincing evidence standard and much lower than the beyond a reasonable doubt standard used in criminal courts.
In many cases, you might encounter "he said, she said" situations where the statements of two people conflict. Even in these scenarios, you should use the preponderance of the evidence standard and apply credibility factors to make a finding. It’s essential to make a determination rather than concluding that the outcome is inconclusive. People rely on you to make a definitive finding, even if it is based primarily on one person’s statement.
i. Assessing Credibility.
According to EEOC guidance, employers may need to weigh each party's credibility when conflicting versions of events arise. Credibility assessments can be critical in determining whether the alleged harassment occurred. The most common credibility factors include:
Inherent Plausibility: Is the person’s account believable on its face? Does it make sense? For instance, if someone describes an incident in a way that seems physically implausible, it can diminish their credibility.
Motive to Lie: Does the individual have a reason to lie? For example, if someone is facing job termination for poor performance, they might have a motive to fabricate an allegation.
Corroboration: Is there witness testimony or documentary evidence that supports the account? The presence or absence of supporting evidence can significantly impact credibility.
Consistency: Has the person been consistent in their statements over time? If a complainant's story changes significantly, it can undermine their credibility.
Manner of Testimony: Consider how the person testifies. Do they hesitate before answering or avoid direct answers to questions?
It is important to distinguish between different credibility factors and use them with caution. For instance, the manner of testimony is different from demeanor. Demeanor includes behaviors like avoiding eye contact, speaking softly, or sitting stiffly. Studies show that demeanor is not a reliable indicator of truthfulness. Cultural and personal factors significantly influence how people present themselves. In some cultures, making eye contact with authority figures is considered rude. Therefore, be cautious when using demeanor to assess credibility and consider if it truly helps your evaluation.
Reputation and attitude also need careful consideration. People may not be at their best during interviews, so it’s important to withhold judgment based on their behavior at that moment. Reputation can be relevant, but don't overstate its importance. Just because someone has behaved in a certain way in the past does not mean they will act the same in every situation.
ii. Common Pitfalls in Assessing Credibility.
Over-reliance on Demeanor: As discussed, demeanor is not a reliable indicator of truthfulness due to cultural and personal differences.
Unconscious Bias: All investigators bring their biases to the table. Be aware of and manage these biases to ensure a fair investigation.
Confirmation Bias: Avoid looking for evidence that only supports your preconceived notions. Keep an open mind and evaluate all evidence objectively.
Premature Determination: Don't rush to conclusions. Thoroughly review all evidence before making a determination.
Failing to Make a Determination: As an investigator, it is your responsibility to make a finding. Avoid inconclusive outcomes by using the evidence and credibility factors to reach a decision.
Remember, investigations must be fair, timely, and thorough, with an emphasis on thoroughness. Your role as an investigator is to assess all the evidence and make a well-reasoned finding. This approach ensures that your conclusions are grounded in a careful and unbiased evaluation of all available information.
h. Step 8: Develop a Written Summary of Investigation Results.
When concluding an investigation, there are two primary findings you can make:
1. Sustained: An allegation is sustained when the investigation reveals that a preponderance of the evidence supports the allegation.
2. Not Sustained: An allegation is not sustained when the investigation reveals that a preponderance of the evidence does not support the allegation.
Sometimes, you may encounter situations where a mixed finding is appropriate. This means that part of the allegation is sustained while another part is not. This often occurs when the underlying action is confirmed, but the alleged motive is not supported by sufficient evidence.
For example, consider a case where an employee alleges they were demoted due to their race or gender. Upon reviewing the evidence, you may find that the employee indeed lost several job duties or was demoted (sustained). However, there might not be enough evidence to prove that the demotion was motivated by race or gender (not sustained). This results in a split finding, acknowledging the factual occurrence but not the alleged discriminatory motive.
In such cases, it is crucial to clearly explain the reasoning behind each part of the finding, ensuring that your conclusions are well-supported by the evidence. This approach provides a balanced and transparent outcome, reflecting both the substantiated and unsubstantiated aspects of the allegation.
Let's discuss memorializing and communicating your findings. This process should be thoroughly discussed with your client. It is highly recommended that your results are documented in writing. Regardless of the format, however, the findings should include the following:
1. A summary of the complaints received.
2. A statement describing the scope of the investigation.
3. Identification of the employer's policies and relevant laws governing the behaviors in question.
4. Identification of witnesses and a summary of their testimonies.
5. A review of documentary and other evidence examined during the investigation.
6. The investigator’s findings and conclusions, including assessments of credibility, and the reasoning behind these conclusions.
7. Suggested outcomes based on the evaluation of the evidence.
When preparing your report, you can choose to either identify witnesses by name and provide detailed points of their testimony or present general information without identifying who provided it. The approach may vary based on different considerations.
After compiling the report, present it to your client, who will then decide how to proceed. You can advise them on next steps, including potential disciplinary actions, but ensure you caution your client against retaliating against any participants in the investigation.
Always communicate the results of the investigation to the complainant. You don't need to disclose every detail but explain that the investigation is concluded and, if possible, what actions have been taken as a result. Discuss with your employer whether you can share specific information while considering the privacy of the subjects involved. Encourage your client to thank the complainant for their cooperation.
i. Step 9: Post Investigation Action Items.
Once your report is written and you have made your findings, it is essential to prepare your closing letters or schedule closing meetings. Typically, these communications are conducted with the complainant and the respondent, not with the witnesses. Share the results of the investigation with the parties involved but avoid disclosing all the details to prevent a chilling effect on the investigatory process. If participants knew that everyone would be aware of their involvement and specific statements, it might discourage them from coming forward or cooperating in future investigations.
i. Closing Letters and Meetings.
Closing letters serve as a formal way to document that the investigation has concluded and to communicate the findings to the parties involved. However, don’t underestimate the power of a personal touch.
Whether conducted virtually or in person, closing meetings can significantly impact the complainant and respondent. They provide an opportunity to ensure the parties feel heard and understood. For instance, in one case, instead of just sending a letter, a department head took the time to meet with the complainant. They explained that while there wasn't sufficient evidence to sustain the allegations against a high-level manager, the complaint was taken seriously, and the organization valued the complainant’s input. This approach provided the complainant with a sense of closure and validation that a simple letter might not have achieved.
j. Step 10: Monitoring for Retaliation.
After completing your investigation and making your findings, it's crucial to stay vigilant for any signs of retaliation. Even if the underlying complaint is found to be without merit, there can still be significant liability if retaliation occurs because of the investigation.
i. Importance of Monitoring.
Retaliation can occur in various forms, such as changes in job duties, exclusion from meetings, or actions that affect career advancement. For example, in one case, an elected official was accused of sexual harassment. Although the harassment complaint was found to be baseless and was dismissed, the complainant later alleged that the official retaliated against them by taking away job duties and refusing to speak to them, which impacted their career. The retaliation claim was substantiated, leading to liability for the agency. This case illustrates that retaliation claims can be significant even if the original complaint lacks merit.
ii. Steps to Prevent and Address Retaliation.
By following these steps, you can help ensure that your workplace remains free from retaliation, thereby protecting the integrity of the investigation process and fostering a safe and respectful work environment:
Monitor the Work Environment: Continuously observe the workplace for any signs of retaliation. Assign a person or team to regularly check in with the parties involved in the investigation.
Prompt Response: If anyone raises concerns about retaliation, respond promptly and handle the situation as seriously as the original complaint.
Documentation: Keep thorough records of any actions taken to address retaliation concerns. This can include memos, reports, or internal communications documenting the steps taken to resolve the issue.
IV. Conclusion.
Conducting effective workplace investigations is a critical responsibility for HR professionals, ensuring legal compliance and fostering a positive workplace culture. This comprehensive guide has outlined the necessary steps for performing thorough and unbiased investigations, emphasizing the importance of addressing complaints related to harassment, discrimination, retaliation, safety, and ethics.
By adhering to these best practices, HR professionals can uphold the integrity of the investigation process, ensuring that all employees feel heard, respected, and protected. This not only mitigates legal risks but also contributes to building a trustworthy and harmonious workplace where everyone can thrive.
HR & Business Associates is committed to helping you start, run, and grow your small to mid-sized business. At HRBA, we specialize in conducting comprehensive workplace investigations. Contact us today by visiting our website or emailing us directly at contact@HRandBusinessAssociates.com for your free consultation.
This article is intended for informational purposes only and does not constitute legal advice nor does it create an attorney-client relationship. Readers are advised to consult with a qualified legal professional for personalized advice and to ensure compliance with relevant regulations.
