Amid the almost daily media storm on sexual harassment and misconduct in the workplace, employers should take conscious steps to either amend or put in place a comprehensive plan on conducting workplace investigations involving employee misconduct. As any internal employee complaint of harassment and/or misconduct could one day result in a lawsuit, investigations should be conducted as though its results may one day be an exhibit in a court proceeding.
So, if not now, then when will you ensure your business has an effective procedure to conduct workplace investigations? Here are some key tips to conducting an internal workplace investigation that can protect your company’s finances and reputation.
Choose the Right Investigatory Team:
Employers can choose to conduct an internal investigation or bring in an outside investigator. The right choice is fact-sensitive and depends on a multitude of factors. It might be best to rely on an outside investigator if the complaint is serious. An employer might also want to bring in an outside investigator if there are specific fact-based allegations that could impose potential legal liability on the business, or if the complaint names an upper level or executive level employee. Conversely, if the complaint is more routine in nature or includes a lower level employee, an internal investigator may be the right choice for your business.
The investigator must be objective and his/her investigatory integrity must be above reproach and cannot be impeached if the complaint ultimately turns into a lawsuit.
Develop a Plan:
It is important to create a plan with a clearly defined purpose and scope to ensure a thorough and on point investigation. A well thought-out plan will make sure nothing is overlooked throughout the investigatory process. A good investigation will be able to answer the following questions:
Who will investigate?
What is being investigated?
Who needs to be interviewed?
What evidence should be gathered?
Keep it Confidential:
The employer must take precautions to the best of its ability to protect the confidentiality of the employee. It should be explained to the complaining party and any other individual involved in the investigation that all information gathered will be kept confidential to the extent possible for a thorough investigation. By maintaining confidentiality, it is more likely parties will cooperate and remain truthful.
4. Act Swiftly:
A thorough and complete investigation can lead to resolution of an employee’s complaint in-house and prevent a lawsuit; however, if that complaint does result in a lawsuit, the quality of the investigation could be dispositive of whether the case turns out in the employer’s favor. Once a complaint is lodged there should be no delay in initiating an investigation. An employer wants to be able to show that it swiftly took steps to investigate the complaint and that it did not waste time responding to the complaint. Allow for an adequate period of time to develop an investigative plan, and once developed, the investigation should proceed with all due haste.
Remain Objective and Cautious:
Employers should not take the allegations in a complaint at face value and seek out all sides of the story. Even if the language in the complaint includes buzz words that could trigger legal liability such as “harassment”, if true, a closer look at the complaint may very well reveal a benign behavior. On the other hand, mild language can conceal the worst possible type of harassment. So employers should remain skeptical of the language used in complaints.
It is important to be sure that investigators are mindful of the choice of words chosen in their questions and reports. Use neutral words such as “conduct” or “behavior” in order to avoid mislabeling an aggressor’s behavior or the victim’s recollection. The investigator must always be vigilant to ask straightforward questions, act as only a fact-finder, and always remain respectful.
Maintain a Record:
An employer should always handle workplace investigations with the assumption that the complaint will turn into a lawsuit. Therefore, a clear and accurate report should be created to document every step of the investigation. A final report of the investigation will summarize the following: the (1) incident investigated; (2) parties involved; (3) key factual and credibility findings; (4) employer policies or guidelines and their applicability to the investigation; (5) specific conclusions; (6) any issues that could not be resolved and the reasons for the lack of resolution; and, (7) any actions the employer has taken as a result of the complaint and investigation. Ultimately, the report will insure that if the investigation were to be reviewed, a person reviewing the report would likely conclude that the employer responded swiftly and appropriately, took the situation seriously, and had a justified reason for any actions taken as a result or during the investigation.
An employer is likely to quell a complainant’s urge to bring a lawsuit if it can demonstrate that a thorough investigation was conducted, a record was made that includes the contents of the complaint and investigation, and the employer has taken steps to resolve the issues in the complaint.
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