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Document each step of every investigation

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in Discrimination and Harassment,Human Resources

As soon as you hear a supervisor complain that an employee isn’t performing well, start keeping detailed records of your efforts to investigate.

Reason: An employee who feels he is in trouble and facing possible discharge may file a complaint alleging discrimination or other wrongdoing. He’s hoping that will derail the disciplinary process and maybe give him a whistleblower retaliation lawsuit if he’s fired.

Being able to show exactly how you looked into performance problems can demonstrate to the court that your investigation began well before the employee engaged in any potentially protected activity, and could not have been retaliation.

Recent case: Ralph worked for PES, an engineering company that operates in many locations nationwide. He accepted a supervisory position in Minnesota and discovered that the operation had a history of missed deadlines and other problems.

At first, things went well. But, Ralph allegedly began to have conflicts with subordinates. When one complained to HR, the company launched an investigation. Shortly after it began, Ralph told his supervisor that he believed the company’s pay policies might be illegal.

A company investigation found that Ralph had fallen asleep during meetings, behaved disrespectfully and wrongly threatened to fire several employees.

He was fired. Then he sued, alleging retaliation for engaging in protected activity by reporting the alleged pay problem.

But the court tossed out his lawsuit after concluding that the investigation that led to Ralph’s termination—which involved numerous interviews with unhappy subordinates—predated his alleged whistleblowing. (Mervine v. PES, No. 14-3080, DC MN, 2016)

Final note: Documentation wins lawsuits. Track each step of every investigation. Gather enough details to show when you began it, whom you spoke with and when you decided on appropriate discipline.

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