EFFECTIVE WORKPLACE INVESTIGATIONS CAN RESOLVE COMPLAINTS, AVOID BAD PUBLICITY AND MORE
Q: When should employers conduct workplace investigations for sexual harassment and other claims?
A: Employers should conduct workplace investigations as soon as possible following a complaint or being put on notice of potentially unlawful conduct. Employer handbooks should establish a policy and procedures for receipt of complaints, for example, an anonymous hotline or certain personnel in human resources, management or legal. However the company receives notice, a prompt remedial response is required — undue delay increases the risk of litigation.
Q: How should employers staff the investigation team?
A: A good rule of thumb is to use internal counsel when nonmanagerial employees are involved and to use outside resources when executives or higherlevel employees are involved. However, the severity of the allegations, the presence of trained company personnel and other factors affect this decision. Whomever is used, it’s critical that they be neutral, a good listener, analytical thinkers, sensitive to the issues and good writers. They also need to be prompt in conducting interviews, reviewing documents and making a written summary of the facts.
Q: What are some of the major pitfalls that can detract from the effectiveness of an investigation?
A: Approaching an investigation without specific focus can cause investigators to lose sight of the issues, or miss issues altogether, and travel down irrelevant rabbit trails that unnecessarily prolong the investigation. It also is imperative that an investigator be objective — investigators can’t bring a bias to their investigation or have separate agendas, for example, an ax to grind against one of the involved employees. Even the appearance of bias will undermine the investigation process. The investigator also must try to corroborate the information provided by witnesses with other witness reports or, even better, with documentation (email, text message, voicemail, etc). Investigators also should act quickly, but not hastily and be thorough.
Q: When should the investigation be concluded?
A: The investigation should be concluded only after the investigator has interviewed all available witnesses identified by the complaining employee, the employee accused of misconduct and persons identified by other witnesses, and also reviewed all relevant documentation, which obviously includes electronic data. After gathering information, the investigator should document their factual findings in a neutral written report. Unless explicitly directed by management, the investigator’s report should contain factual findings, not legal conclusions or even recommendations for remedial action. Those conclusions and recommendations are for management and legal counsel.
Q: Can the outside investigator serve as counsel in the event of litigation?
A: If external counsel conducts an investigation he or she will be conflicted out of defending the employer in related litigation. Instead, the investigating counsel may be called to testify in that litigation about the facts gathered during the investigation. Most employers, and some lawyers, either don’t realize this or forget it when selecting the investigator.