Workplace investigations: Employer’s guide

Workplace investigations infiltrate every facet of employer activity, from allegations of sexual harassment or discrimination, to concerns over safety, violence, theft, and fraud. Conducting prompt, thorough workplace investigations followed by appropriate discipline will help insulate your company from potential legal liability.

1. What steps should an employer take when investigating a sexual harassment complaint?

Here’s a step-by-step procedure that will ensure that you get all the information you need when investigating a sexual harassment complaint.

Note: The pronoun used here is “she,” but it could also be “he.”

Step 1. Interview the harassed employee. What does she say happened? Who does she name as the harasser? Where and when did the incident take place? How did she react? Were there witnesses? Was it an isolated incident or part of a series? Has she spoken to anyone else about the incident?

Step 2. Interview the accused harasser. Stay objective. Assume nothing. Put every statement in writing. Remember, your notes may end up in court.

Step 3.Interview all witnesses. Phrase the questions so you don’t give any information or influence the comments. For instance, it’s better to ask “Have you heard anyone say something to Ann that made her uncomfortable?” rather than”Did you hear Frank proposition Ann?”

Step 4. Weigh all the evidence. Consider the credibility of each party, based on the reputations of the employee and the alleged harasser. Is there any possibility the employee is trying to make up for a poor performance review or a disciplinary action? Are there any previous complaints against the accused harasser?

Step 5. Take action. Once you have all the facts, ask yourself if any sexual harassment did occur. If you decide the accusation is without merit, write a detailed report explaining why, and have the evidence to back it up. If harassment did occur, you should follow the disciplinary procedure specified in your company policy.

2. How can a prompt and thorough harassment investigation insulate a company from legal liability?

Tough Talks D

The U.S. Supreme Court’s rulings in Burlington Industries, Inc. v. Ellerth (U.S. Sup. Ct., No. 97-569, 1998) and Faragher v. Boca Raton (U.S. Sup. Ct., No. 97-282, 1998) drove home the importance of conducting sexual harassment investigations. The court established an affirmative defense to liability for sexual harassment based in part on an employer’s ability to show that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior. That’s where strong investigatory procedures come into play. Employers that can prove they took prompt and remedial action to end the harassment (any type of harassment) may have a legal leg to stand on when fending off sexual harassment claims.

To help clarify what is meant by reasonable care, the EEOC released guidelines, which include the necessary steps for a legally sound investigation.

According to the EEOC, the first step in preventing and correcting harassment is to establish, distribute, and enforce a policy prohibiting harassment and setting out a procedure for filing complaints. Your policy should make it clear that the employer will not tolerate harassment based on race, sex, religion, national origin, age, or disability, or harassment based on opposition to discrimination or participation in complaint proceedings. Don’t forget to include a provision stating that the employer will not tolerate retaliation against anyone who complains of harassment or who participates in an investigation.

Establishing a complaint procedure is a little more involved than explaining to employees what the policy prohibits. The EEOC recommends the following elements in order to make the procedure clear and complete.

  • The employer should encourage employees to report harassment to management before it becomes severe or pervasive.
  • The employer should designate more than one individual to whom employees can go with complaints, and should ensure that these individuals are in accessible locations. The employer should also instruct all of its supervisors to report complaints of harassment to appropriate officials.
  • The employer should assure employees that it will protect the confidentiality of harassment complaints to the extent possible.

The next step is the investigation. The EEOC guidelines set out three conditions for a legally-strong harassment investigation.

  1. An employer should conduct a prompt, thorough, and impartial investigation. The alleged harasser should not have any direct or indirect control over the investigation.
  2. The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information.
  3. Before completing the investigation, the employer should take steps to make sure that the harassment does not continue. If the parties have to be separated, then the separation should not burden the employee who has complained of harassment. An involuntary transfer of the complainant could constitute unlawful retaliation. Other examples of interim measures are making scheduling changes to avoid contact between the parties or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.

The last step in ensuring you’re armed against vicarious liability is to take corrective measures. This means that if you determine harassment has occurred, you must take immediate measures to stop the harassment and ensure it doesn’t recur. Disciplinary measures for the harasser can range from a written warning placed in his/her personnel file to termination, and should be proportional to the seriousness of the offense. You should also correct any effects of the harassment by, for example, restoring leave taken because of the harassment or removing negative evaluations in the harassee’s personnel file that arose from the harassment.

3. An employer discovers that one of its employees told a supervisor that she felt she was treating her discriminatorily. Should the company investigate the claim, even though the employee has not filed a formal complaint?

Yes! A company may be able to argue it didn’t have knowledge of harassment or discrimination in its workplace if an employee only told other employees. But once a supervisor or manager is informed, most courts will agree that the company has been put on notice — regardless of whether the employee followed the company’s grievance procedure.

First, your employee (all employees, actually) should be aware that her supervisor is not her only recourse, especially if the supervisor is the alleged problem. Then, you should put someone else in charge of the investigation, since the supervisor is obviously part of the situation. Since it seems that the employee’s complaint is well-known to upper management, proceed as you would with any other investigation.

Get both the employee’s and supervisor’s sides of the story. See if you can get specific examples of discrimination from the employee (e.g., unfair discipline for absenteeism). See if you can get concrete evidence from the supervisor to support his actions (e.g., legitimate time cards showing absences/tardiness). Then try to find witnesses to any of the alleged events, especially if it turns into a case of the employee’s word against the supervisor’s.

If you determine that discrimination has occurred, rectify the situation immediately. If not, make sure you clearly explain the results of your investigation to the employee and ensure that she understands why you’re not, in her eyes, rectifying the situation. Once the investigation is over, be sure to keep a weather eye out for potential friction that may result from the accusations, investigation, etc.

4. When investigating employee misconduct, what steps should an employer take to stop the questionable behavior and prevent potential legal problems?

Some tips for conducting thorough internal investigations of employee misconduct:

  1. Decide whether a formal investigation is necessary. Some problems can be resolved without a full-scale investigation. Consider whether you need more facts than the employee can provide.
  2. Determine what issues are at stake. Since different complaints are handled differently, you must understand the issue before initiating the investigation.
  3. Select the appropriate investigator. Choose between a front-line supervisor or manager, a representative from Human Resources, or an outside agency.
  4. Identify relevant documentation to be reviewed. Before conducting interviews, make sure you understand what company policies apply to the situation. Also consider what relevant documentation, e.g., personnel files, expense reports, performance appraisals, prior investigation files, etc., will frame the scope of the investigation.
  5. Consider whether interim actions are necessary to protect the safety and health of others or to protect the integrity of company policies. For instance, claims of violence or theft may require you to transfer or suspend the accused employee pending the outcome of the investigation.
  6. Notify the accused employee of the accusations against him/her and give the employee an opportunity to tell his/her side of the story.
  7. Identify and interview potential witnesses. Start by drafting a preliminary list of questions for each witness and be prepared to go beyond your pre-planned questions as the conversation unfolds. The goal of the interview is to obtain as much information as possible from each witness.
  8. After you’ve conducted a thorough investigation, determine the seriousness of the violation, identify what laws or company policies have been broken, prepare a summary of your findings, and recommend a course of action.
  9. Inform both the complainant and accused of your final decision.
  10. Document every step of the investigatory process since proper documentation may help you avoid liability in the future. Take these steps:
  • Encourage the employee to prepare a written statement of his/her claims.
  • Prepare a confirmation memo describing the claims in an attempt to clarify any misunderstandings.
  • Take careful notes during your interviews with the accused and all witnesses.
  • Summarize interview notes to ensure mutual understanding.
  • Document your findings and conclusions in a final report that should only be distributed to those with a legitimate need to know.