by Derek Ross
In 2016 there were 91,503 total charges filed with the Equal Employment Opportunities Commission (EEOC) costing employers more than $482,100,000. Yes, that is 482 MILLION dollars!!! Even if your recruiting and hiring process is perfect, all your policies are in place, and you carefully train all employees, you can’t guarantee that you will never have issues among your employees. Unfortunately, you may still have to deal with complaints of bullying, theft of company property, discrimination, or harassment. You may not be able to prevent all these issues, but you will save your company a lot of money and headaches if you manage these issues properly when they do come up.
Having a strong workplace investigation process could help your company avoid shelling out big bucks to employees and their lawyers. It may also help you avoid one of the most prevalent complaints the EEOC reviews – retaliation.
Let’s take a look at best practices for performing a workplace investigation:
Planning to investigate
To properly perform an investigation, a company needs to lay out a plan. First and foremost, the company will need to find out what policies and guidelines apply to the complaint, who will conduct the investigation, how have similar complaints been handled in the past, and what questions to need to be asked. For this example we will be looking at a sexual harassment allegation.
First remove the accused from the situation if possible. That could include moving the employee’s work space away from the accuser or requiring them to take a leave of absence until the investigation is complete. Never fire the employee prior to the completion of an investigation. On the flip side, be very careful that you never take an action that could be considered retaliatory against the employee making the claim.
Employers have a legal obligation to conduct an internal investigation and could be held liable if the investigation is not handled properly and fairly. The person conducting the investigation should be skilled in this area. Ideally, this person should be trained, unbiased and unprejudiced. In most cases, they will come from your Human Resources Department.
The interview (fact-finding) process
During the interview portion with the accuser:
- The employee heading the investigation should have a comfort or trust level with the accuser. This will ensure that the accuser will be fully cooperative.
- The investigator should identify all of the issues by asking only questions pertinent to the complaint and gathering all of the necessary facts. This should be done in a timely manner.
- The investigator should determine if the accuser has facts to back up their accusations such as emails, texts and/or witnesses. If so, the accuser will need to divulge these.
- The investigator will also want to determine if the incident was severe or pervasive enough to create a hostile work environment and find out if the accuser has confided in another employee.
- The investigator should assure the accuser that this is a confidential meeting and information discussed will only be revealed to other employees on a need to know basis, as part of the investigation process.
- And lastly, the investigator must reassure the accuser that the company will not tolerate retaliation, which, by the way, is the number one charge addressed by the EEOC (45.9% of all claims in 2016 were related to retaliation. Need to see more details? Click this link: https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm)
During the interview portion with the accused:
- You should provide as many details from the interview with the accuser as is needed. Be aware that the accused may become irritated or combative.
- You should review the company’s Anti-Harassment Policy with the accused. (If you don’t have an Anti-Harassment Policy, you need to establish one right away.)
- Ask open-ended questions and continue the questioning until you feel comfortable that you have all the information you need or that all of the questions were answered. Stick to only the facts that pertain to the employee’s complaint and do make assumptions or come to conclusions on your own.
- Just as you did with the accuser, assure the accused that this is a confidential meeting and information discussed will only be revealed to other employees on a need to know basis, as part of the investigation process.
Documentation during the investigation
Take as many notes during the investigation as possible. During the entire investigation and interviews, documentation will become paramount. Again, collect as much data as you can from both sides and document entire conversations. This will ensure that you have all of the necessary information to make the best determination. After the investigation has been completed, the investigator should write a report and recommend appropriate action.
If the accused is found to be in the wrong and in need of discipline, consider applicable laws, the employee’s previous history, as well as how similar situations have been handled in the past. Stay consistent with the company’s previous disciplinary actions. Review the policy from the handbook and follow your disciplinary policy.
Next time you need to investigate an accusation, here are a few basic rules to remember:
- Do not fire the employee until the investigation has been completed
- Either move the accused employee’s work space if possible or have the employee put on leave until the investigation is completed
- Remind the accuser and managers involved that retaliation will not be tolerated
- Stick to the facts
- Document the entire investigation
- Keep the complaint and investigation confidential and on a need-to-know basis
- Follow company policy and be consistent with past practice with regards to discipline
- Do not retaliate against the accuser or anyone participating in the investigation.
Lastly, make certain that managers are trained on their legal responsibilities regarding harassment, discrimination and retaliation. East Coast Risk Management can assist your company with HR-specific trainings. Employers can reach us by calling (724) 864-8745.
Disclaimer: The information provided on this website is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this website do not create an attorney-client relationship between East Coast Risk Management or our employment law attorney and the user or browser.