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Workplace Investigations

A workplace investigation report should include a summary of the allegations made and each allegation should be investigated and addressed in the report.   The investigation report should document what the employee alleged, what the witnesses said regarding the allegations, any relevant documents should be attached to the report, The investigation should determine if there were any violations of company rules, policies or procedures and what was the conclusion of the investigator regarding the allegations of the employee.  The investigation report should document whether the allegations were substantiated, not substantiated or if the evidence was inconclusive and the reasons for the investigator’s conclusions.  Finally, the investigation report should clearly state a recommended action and what action was taken and when. It is important that for any allegation that is substantiated by the investigation report that the employer document that it took appropriate remedial action.  If discipline action was taken, the investigation report should document that the employee was treated similarly to other employees in accordance with the company policies and procedures.

Every business, no matter what size, should have an Anti-Harassment/Discrimination policy prohibiting harassment or discrimination in the workplace.  Even an employer of a few employees should have policies prohibiting harassment and discrimination in the workplace.  Larger employers are bound to run into situations which will require addressing complaints of harassment, discrimination, workplace violence, theft, drug use and other employee problems.  When the employer becomes aware of these problems, they cannot bury their head in the sand and hope it resolves itself.  Under the discrimination laws, an employer who becomes aware of alleged workplace harassment is required to conduct an investigation and take prompt, effective remedial action. Many employers (and managers) believe the problem will go away if they just ignore it.  This is a huge mistake which leads to frustration on the part of the employee, and eventually ends in a lawsuit.

As an employer, you want to conduct an internal investigation that is thorough, expeditious, discreet and confidential, so you can take an action which responds to the problem without exacerbating the situation.  There are a variety of ways to investigate an employee complaint in the workplace, but following certain general guidelines can assist your company in developing an investigation policy.

Here are ten guidelines to consider when investigating employee complaints:

1.  Develop Policies and Procedures for an Internal Investigation:

The first step is to establish policies and procedures for investigations so that all investigations are uniform.  This should include an understanding of who is in charge of the investigation, who will receive the investigation report and who will make conclusions about the investigation report.  It should be determined who will follow up on corrective action or discipline, and if any training is deemed necessary based on the conclusions of the report.  Conducting regular training for employees and managers on company policies prohibiting discrimination and harassment in the workplace can prevent claims.  Finally, there should be a policy about where and how long the investigation report, investigation interviews and documents are kept.

2.  Choosing the Investigator:

The second step to addressing employee complaints is to have an objective person conduct the investigation.  The person conducting an investigation needs to be credible, respected, and regarded as fair and impartial. One of the most difficult aspects of an internal investigation is obtaining an impartial investigator, because the parties may be too personally involved.  The parties may have known each other as colleagues, manager/employee or co-workers, and have impressions and personal biases of each other making it almost impossible to conduct an objective investigation.

In some circumstances, such as when the manager is the alleged offender or if the manager had many problems with the complainant, it is a good idea to use a manager from a different department or an outside investigator to investigate the complaint.

It is advisable to have someone investigate the matter who is not involved in the workplace dispute.  Sometimes this is not feasible given the size of a company, but if possible, having an objective point of view can help the employer determine how to resolve the problem.

3.  The Investigator Needs to Know Employment Law:

The person conducting the investigation needs to be credible, respected and regarded as fair and impartial, but also knowledgeable about company policies, practices and employment law issues.  The investigator must be familiar with the state and federal employment laws.

Investigators will need to identify potential witnesses and documents for review in an efficient manner.  If the investigator is not familiar with the employment laws, they can make the matter worse by investigating matters which do not need to be investigated; or unnecessarily interviewing witnesses and wasting the company and employees’ time.  If the investigation is not done timely and efficiently, it can be a distraction to employees, lead to gossip, cause morale problems and slow down production.

4.  The Investigation needs to be Timely:

The fourth step to conducting an investigation into employee complaints is to begin and complete the investigation in a timely fashion. The employer needs to start an investigation, talk to the complainant and the alleged offender and any alleged witnesses, and reach a conclusion based on the investigation in less than thiry days. This will help avoid many lawsuits filed by employees.

Many employment lawsuits result because the employer does not act in a timely fashion when an employee complaint is received.  Many employers begin an investigation, but don’t tell the employee who filed the complaint that any action has being taken.  It is good practice to advise the complainant in writing that an investigation is underway, and that the employee will be notified when the investigation is completed.  The employee can and should be contacted shortly after they file a complaint and an interview scheduled.  The alleged offender should also be given reasonable notice before being interviewed as well.  The witness should be contacted, and an interview scheduled in a timely manner.  It is not a good practice not to give notice to employees who are being interviewed.

Most investigations should be concluded in less than thiry days.  There are rare circumstances where an investigation will last longer, such as complaints that involve documentation of FMLA violations or where there is a need to compile, review and analyze a large amount of documentation.  In those circumstances, the employee who made the complaint should be contacted every thirty days and notified that the investigation is still on going.

When the investigation is concluded, notify the complainant that the investigation has been completed and the matter was handled appropriately based on the conclusions of the investigation.  If an investigation is inconclusive, provide an explanation of why further investigation is not merited or why the investigation is inconclusive. The more responsive the employer is in handling the complaint, the quicker the company can get back to its business.

5.  Encourage Cooperation:

An investigator needs to encourage cooperation. The investigation process is for the purpose of resolving a complaint, not to discipline or punish poor performing employees. The employees need to know that this process is to resolve legitimate complaints and not to make false claims or to retaliate against other employees.  The investigator must create an atmosphere where employees feel it is in their interest to cooperate and to tell the truth.  All employees should be told that the investigation is a company investigation, and failure to provide honest and truthful statements or to provide misleading information can lead to discipline.

6.  The Investigation needs to be Confidential:

Make certain any investigation is done in a confidential manner.  The witnesses should be told that the investigation is confidential and they are expected to keep the investigation confidential, and that a breach of confidentiality can lead to discipline.

All witnesses must be made aware of the importance of keeping the investigation confidential, and the ramifications in the event the investigation is not kept confidential. It is important that employees not gossip about the investigation or talk to each other to compare answers to the investigator’s questions.

In an initial letter to the employee telling them you are investigating the complaint it is important to tell the employee to keep the matter confidential, and not to speak to anyone other than an appropriate manager or union representative.  The employee can also be told that any discipline issued as a result of the investigation will be kept confidential. Confidentiality is important in order to avoid claims of defamation and to insure the integrity of the investigation by minimizing any disruption to the workplace.

7. The Investigator’s Report:

The seventh step in responding to employee complaints is developing a record which can be reviewed a year from the investigation to understand what the complaint was, what was done to investigate it and what conclusions were made as a result of the investigation.  Each step of the investigation needs to be documented by the investigator. Many managers who investigate employee complaints waste time talking to employees, and never documenting anything that was said.

The investigator needs to keep good notes documenting each step of the investigation. The report that is put together should include the following:  A summary of the allegations made; which witnesses were interviewed by noting who was present, including dates and position of the employees interviewed; a list of documents reviewed; an executive summary; the body of the report setting forth the facts and what the witness said along with conclusions for each allegation; and a summary of the findings.  Finally, the employer needs to document that it took appropriate remedial action if an allegation is substantiated.

8.  The Investigator Needs to Gather Facts:

The investigator can best obtain facts by avoiding questions that are confrontational, argumentative, leading, judgmental or opinionated. The investigator should use open ended questions to allow the person tell their side of the story.  The investigator needs to make sure they don’t get just one side of the story, but rather obtain responses to all allegations made.  It is helpful to have the complainant fill out a complaint form, but this is not mandatory.

Some investigators begin the interviews with the complainant. This may be appropriate if there is a written complaint and the investigator knows what the issues of the complaint are. However the complaint is vague and broad in many situations. The complaint may say, “I was discriminated against by my manager when I was disciplined for my attendance.” In this example, it will be helpful to interview any managers of the complainant first before actually interviewing the complainant so you know the dates and policies involved.  It is also advisable to explain to the complainant that a follow up interview may be necessary.  An investigator should not disclose any witnesses who have been interviewed, or the order of the interviewees.

The investigator should take careful notes of each interview and ask questions several different ways to ensure each witness’s side of the story is fully understood. The investigator must ask the complainant about all relevant allegations and not assumeanswers while remembering that the investigation is to document what was said and to assist the company in resolving and documenting the investigation. The investigator who gathers the facts, and keeps everything in their head and then comes to you and saying they solved the problem is of no help.  The employer needs to document what it did to investigate the matter.

9.  No Retaliation Allowed:

The ninth step to investigating employee complaints is to ensure all participants know there is zero tolerance for retaliation against someone making an allegation or against any other employee.  It is important to tell employees interviewed that the company has a policy to investigate all complaints, and this is the process to resolve employee complaints.  Inform employees that under no circumstances should employees retaliate against someone for making a complaint. The employees must be advised that if an employee feels retaliation, or if an employee retaliates against someone else, they may be disciplined.

10.  If Discipline is Implemented, Ask Questions:

Always ask six questions at the conclusion of the investigation. After reviewing the investigation file, there should be answers to these questions:

  • What were the allegations made by the employee?
  • What were the facts involved with regard to each allegation?
  • Did the facts substantiate, not substantiate or was there not enough evidence to substantiate or not substantiate the allegations and why?
  • Were there any violations of company rules, policies or procedures?
  • What action was recommended and was that action taken.
  • If discipline action was taken, was the employee treated similarly to other employees in accordance with the company policies and procedures?

Addressing these questions ensures that employees are treated in a consistent and fair manner.  If an employer makes a decision that leads to a possible termination, it is advisable to have another manager outside the complaint review the file to determine whether these questions can be answered by looking at the file.

These are ten important guidelines to consider when handling employee complaints. These are general parameters, and will not guarantee that an employee who files a complaint would not sue the company – even if you follow these guidelines.  But the company’s response to employee complaints can mean the difference between resolving an employment issue in a couple of months, or spending the next three years paying attorneys, and possibly a former employee, ten times what it costs to do an investigation of the complaint.

This article may not be reproduced in any form without the permission of Holden Law Firm. © Copyright 2013 Holden Law Firm. All rights reserved.

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