Back to Basics in the Workplace

What do you do after an employee makes a formal or informal complaint of unfair treatment, harassment, or discrimination? Conducting workplace investigations is more important than ever in the era of #MeToo, civil rights movements, and a global pandemic. We provide an overview of the steps that employers should take to conduct an effective internal workplace investigation below.

Implement Policies and Procedures

The prerequisite to conducting workplace investigations is already having the proper policies and procedures in place. Employers should have established anti-discrimination/harassment/retaliation procedures in their employee handbooks that not only prohibit unlawful conduct, but also set forth a detailed complaint procedure.

The most effective complaint procedures include alternate avenues to communicate complaints. This provides employees different methods to voice complaints to avoid a conflict with a member of management with whom the employee does not feel comfortable or who may even be the alleged perpetrator. The policy should also outline the investigation procedure.

When to Conduct an Investigation?

An employer’s obligation to conduct an investigation is triggered when an employee makes a complaint alleging a discrimination, harassment, and/or retaliation claim, or even an accusation that is more general in nature, like “unfair treatment.” The employer must promptly initiate an investigation to fulfill this responsibility. Promptness is imperative not only to secure the best information from witnesses while memories are fresh, but also to boost the credibility of the investigation.

Additionally, human resource managers are commonly designated as investigators because they are familiar with a company’s policies and procedures and understand the importance of impartiality and confidentiality when it comes to employee relations. No matter who within the company is selected to investigate the complaint, the person must be capable of acting objectively, have no stake in the outcome of the investigation, and have the requisite skillset to conduct the investigation. Alternatively, a company may hire outside counsel or a professional investigator.

Separate and Keep Confidential

There may be instances in which a company should separate the complainant from the alleged perpetrator when the allegations are particularly sensitive and the employee does not feel safe in the work environment. In these cases, the company should physically separate the employees’ workspaces if possible, or, in more extreme circumstances, it may be appropriate to temporarily implement a schedule change, transfer, or leave of absence during the investigation. However, a complainant should not be forced to involuntary transfer or leave, since this could be viewed as retaliatory behavior.

Additionally, the investigation should be kept confidential to the extent possible. This means that the investigation remains on a need-to-know basis while it is conducted (this goes for the findings, as well). Explain to employees who are being interviewed that the information gathered will stay confidential to the extent possible, but that they should also understand that there may be circumstances that will require information from the investigation to be communicated to the alleged perpetrator and potential witnesses. Employers should not promise absolute confidentiality.

Witness Interviews

All complaint investigations should include interviews of the relevant parties, which include the complainant, the alleged perpetrator, and the employee-witnesses identified during the investigation.

All interviews should be conducted in private, such as in a conference room or private office. At the start of each interview, the investigator should inform the interviewee of the purpose of the investigation and review the investigation process. Confidentiality should be explained, but the investigator should exercise caution when stressing the importance of confidentiality because it could be interpreted as interference with employees’ rights to engage in concerted activity under the National Labor Relations Act.

The investigator should focus on objective and impartial questions to effectively gather facts during each interview. Investigators should avoid offering their personal opinions, and they should maintain a balanced temperament.

During each interview, the investigator should identify and secure any records that may support the claims. Detailed notes should be taken during each interview to aid in reaching a determination at the conclusion of the investigation. All such notes should be typed into memoranda.

Determination

After concluding the investigation, the company must make a determination as to whether the claims alleged by the complainant are substantiated. The investigator should prepare its findings in a written document and the outcome should be verbally communicated to the complainant and alleged perpetrator during separate meetings.

It should be emphasized to the parties that the company took the complaint seriously and implemented appropriate measures and steps to reach its determination. Complainants should feel heard even if they do not agree with the outcome of the investigation. Regardless of the determination, the company should follow up with the complainant at a later time to see how the complainant is doing post-investigation and ensure that there are no other issues in the work environment.

If the complaint is substantiated, the employer should take immediate and necessary remedial measures commensurate with the violation, up to and including termination.