What should you do when an employee files a sexual harassment complaint against a coworker or supervisor? Or when you receive an anonymous tip on the employee reporting hotline? Or you witness an employee inappropriately touching another employee in the workplace? The answer is simple: Investigate! Investigate! Investigate!
Investigations into workplace harassment complaints, while seemingly daunting, are crucial to effective management. The value of a proper harassment investigation cannot be overstated. A proper investigation shows immediate and appropriate action by the company. It also allows you to engage with employees through direct communication, allowing them to feel heard and validated. A solid investigation also documents facts and findings that could support disciplinary action or defend the company against litigation, if needed. Most of all, a good investigation sends a message to employees that they matter to the company and are protected through your open-door policy and that you will provide prompt and thorough responses to complaints about workplace harassment.
But how does one conduct a proper workplace investigation into harassment claims? The whole idea seems idealistic given the realities of most work environments. The good news is investigating harassment claims is not a one-size-fits-all approach. To the contrary, all good investigators are adapters at heart. And all good investigators always consider these five items when conducting investigations of workplace harassment.
- Triage the Situation and Provide Interim Protection to the Alleged Victim
You wouldn’t dare enter a hostile situation without first assessing what you are dealing with and who you needed to save first, would you? No good investigator would. Harassment complaints often involve emotionally charged parties who may not always think or act appropriately amid confrontation and chaos. You must assess, on the spot, if there is any risk of immediate danger to an employee or harm to property or the environment.
If no immediate harm exists, you should next consider the interim safety of the alleged victim. Practically speaking, this may involve an array of options, such as separating the accused and the alleged victim to avoid any continued harassment or retaliation. It may also include changing work schedules for both the accused and alleged victim. It can involve transferring one of the parties to a different working environment. It may even involve permitting leaves of absences or suspending certain employees with pay while an investigation takes place. Keep in mind that an alleged victim should never be involuntarily transferred or otherwise burdened, as such actions could result in a retaliation claim. If an alleged victim agrees to a transfer, be sure to document that the details of the transfer were explained to the alleged victim and obtain their written consent. The bottom line: Assess the situation and protect the alleged victim before delving into other considerations.
- Ensure Confidentiality
Every good employer knows that it must protect the confidentiality of employee complaints to the best of its ability. This, however, should not impede an employer’s duty to conduct a prompt and effective investigation. In many states, such as California, employers have an affirmative duty to investigate. You should never promise absolute confidentiality to any party involved in the investigation. What you should do is explain to all individuals involved in the investigation that all information gathered will remain confidential to the extent possible. You should also explain that some information may be revealed to the accused or potential witnesses if it is necessary to conduct an effective investigation. In sum and substance, never promise confidentiality, but do your best to maintain it.
- Select the Right Investigator
All too often, employees volunteer only part of the story when it comes to complaints of harassment. This halfhearted offer of information, which is unfortunately common in harassment cases, warrants the need for a skilled investigator if you hope to obtain all the necessary information. There are a wide range of personnel capable of conducting effective workplace investigations, such as human resources professionals, legal counsel (either within or outside the organization) or non-lawyer third-party investigators.
Each type of investigator presents distinct pros and cons and selecting one or the other will depend on the organization, the complaint and the parties involved. For example, employers often assign HR professionals to investigate complaints of harassment because of their specialized job training, investigation experience and interpersonal skills. Yet the drawback to using HR professionals is that they may lack neutrality, given their day-to-day involvement with company employees. This drawback often influences employers to seek the help of objective outside investigators, especially when a harassment complaint involves executives, managers or other HR personnel. Employers seek assistance from a third-party investigator if they lack the resources to provide an internal investigator.
In some cases, employers will hire legal counsel to handle an investigation involving workplace harassment. It is important to consider the ethical obligations that bind attorneys and the implications of the attorney-client privilege. For example, attorney investigators must disclose to the parties involved in the investigation the purpose of the investigation and the existence of the attorney-employer relationship. Attorney investigators who represent the organization should clearly disclose that the company is their client, not the accused. Attorney-client communications also play a vital role in the investigation process, as those communications are shielded from discovery should litigation ensue.
Regardless of the type of investigator used, an effective investigator is one that can investigate the matter objectively and without bias. They have no personal stake in the outcome of the investigation and no personal relationships with any of the parties involved. It is also imperative the investigator possess interpersonal skills, investigative skills, understanding of the fundamentals of employment and the right temperament to conduct witness interviews.
- Develop an Investigation Plan and Interview the Right People at the Right Time
An investigation must be planned in advance if it is to be effective and properly executed. A complete plan should include an outline of all of the issues raised in the complaint; the development of an initial witness list; sources for information, documents, and other evidence; a list of interview questions targeted to elicit crucial information and details; and a process for retention of documentation (for example, preservation of interview notes and emails that could be treated as evidence).
Once the appropriate investigator has been selected, an investigation plan has been developed, and interview questions have been created, the investigator should conduct interviews — right away. It is important to interview the right people at the right time. This means strategizing the order of your witness interviews and not waiting too long before interviewing key witnesses, as memory fades.
One of the main reasons to interview a witness is to obtain information. The interpersonal skills and emotional intelligence of your chosen investigator will play a huge role in what information you obtain, how much information you obtain and whether you get all the details. Witnesses open up to and share information with people they feel most comfortable with. A strong investigator knows how to set up the interview environment and develop a rapport with a witness to get them to talk. In addition, witness interviews allow investigators to determine credibility. Witness interviews can lead to differing accounts and, in some instances, conflicting stories. A good investigator will note these inconsistencies and report them back to you.
- Document Everything!
Speaking of reporting back, the most important rule in conducting any investigation, especially investigations of harassment, is keeping a thorough record of everything — everything! Every employer investigating these types of claims should keep a clear paper trail of all of the evidence, including employee files, records of complaints, records of the investigation and findings, records of each step taken during the investigation process, records of the company’s conclusions based on the investigator’s findings or final report, records of witness interviews and any other information relevant to the investigation.
A key document in investigations is often termed as a “final report.” The purpose of a written final report is to document evidence of an immediate and appropriate response by the employer. The final report also accurately documents the investigation, shows that one was in fact conducted and defends the outcome of the investigation. The final report provides decision-makers with the facts and analysis necessary to decide what further action should be taken.
Workplace investigations can be frustrating and tense, but they are a necessary evil when confronting harassment complaints. It is important to remember these five considerations in order to facilitate an effective investigation and ultimately resolve the issue, while also shielding your company from potential liability.
About the Author
Sharlene Koonce is an associate with labor and employment law firm Fisher Phillips in San Diego. She represents employers in all areas of employment law.