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KEY GUIDELINES TO INVESTIGATING EMPLOYEE COMPLAINTS
Posted on August 28, 2014 in Consulting, Employment Litigation
Every employer may be compelled at some point to investigate an employee complaint of harassment or discrimination. There are simple guidelines to follow when investigating a claim: interview all known witnesses, obtain written statements, and document disciplinary action. In this newsletter, I move past the easy rules and focus on those rules employers sometimes forget. Here are five crucial steps which will aid an investigation and help to avoid a trip to the courthouse.
1. Never allow the complaining employee to limit the investigation.
So often employers run into a situation where an employee complains of wrongful conduct but simultaneously wants to restrict or limit the company’s investigative or decision making process. Here are three classic examples I have heard:
- “I don’t want anyone to get in trouble.”
- “I am telling you as a friend, not as my manager.”
- “I just want you to know in case something else happens.”
Once an employer learns of an allegation of discrimination or harassment there must be an investigation and prompt remedial action. An employer should not alter its normal investigative procedure because the complainant wants to walk a thin line between reporting misconduct and seeing any action taken. First, the duty to investigate arises immediately upon learning of the allegation. Second, the complainant might later deny asking that the investigation or decision be limited. Third, without an investigation the employer could not be certain that the complainant is the only victim of the misconduct. There may be other unknown victims who need to be heard.
2. Never require a “formal” complaint.
Sometimes a manger who receives a verbal complaint from an employee requires that the employee make a “formal” complaint. Translation: send the employee home hoping they do not return with any “formal” written statement and that the matter goes away. Of course, a verbal complaint is as good as any written complaint under the law. That does not mean that the employer should forego a written statement of the complaint. Instead, the employer should give the complaining employee the option of writing out the complaint or having the employer write out the complaint (after an interview of the complainant) for the employee to sign.
3. Avoid asking the complainant what they want.
Too often a manager asks the employee lodging a complaint what they want or what would make them happy. This never plays well in court if litigation later ensues. First, the complainant (and jury) might reasonably perceive the request as a plea to the employee to reconsider the complaint or have leniency on the accused. Second, the obligation to investigate and discipline (if necessary) rests solely on the employer and cannot be shifted to the complainant. Worse yet, it creates the misconception that the employee’s wishes should be satisfied.
4. Always make a decision.
Sometimes an investigation of sexual harassment concludes with a denial from the accused and no witnesses leaving the employer with a classic he said/she said situation. An employer might conclude that under these circumstances it is unable to believe the complaint and thus cannot take disciplinary action. I strongly encourage employers to dig deeper and not let he said/she said be the basis for inaction. Think about it this way. The lack of witnesses might mean the harasser is just savvy about how to harass without getting caught. Also, a jury assessing a claim of sexual harassment will decide whether the harassment occurred. Juries make the tough call as to credibility. Employers must do the same.
5. Monitor future misconduct
Most every employer issues a follow-up memo to the complainant that asks the employee to immediately report any future misconduct. That makes sense. What is better, however, is for someone in human resources to remain on top of the situation. Periodic emails to the complainant checking on their status can be very useful in this scenario.
I hope you use these guidelines to ensure your next investigation helps your company avoid the courthouse.