What happens in your organization when an employee complains about harassment, discrimination, or some other form of potentially illegal behavior in the workplace? How the company responds could be the difference between winning and losing an employment lawsuit. Here are some of the biggest mistakes to avoid when conducting workplace investigations.
1. Fail to Conduct Any Investigation.
Failure to investigate a complaint of discrimination or harassment can lead to liability under the anti-discrimination laws. Moreover, the employer can be held liable for punitive damages because of management's failure to investigate. Courts have found that no investigation can be evidence that the employer acted with "malice or reckless indifference" to the employee's federally protected rights.
Often investigations will not occur because, in the view of management, the complaints were "informal," the employee is no longer working there (such as in an exit interview), or management did not hear magical words like "sexual harassment." Failure to investigate for these reasons leads to legal problems for the company as well.
Finally, failing to investigate because the employee sought "confidentiality" can lead to major legal problems. Employees need to understand that once they have raised concerns of discrimination or harassment, or some other type of illegal action, the company has an obligation to investigate those concerns, and therefore investigators should not be promising complete confidentiality.
2. Use a Biased Investigator.
An investigator who is not perceived to be fair, such as someone who is in the accused's chain of command, will be largely or completely discredited in litigation. Similarly, an investigator who sees his or her mission as only to limit the company's liability will be completely discredited in litigation. This includes investigators who follow up only on leads of the accused, but not of the accuser or the accuser's witnesses, as well as investigators who go snooping through personnel files or credit reports in search of damaging information only against the accused.
3. Promise to Limit the Disclosure of Information Obtained From Witnesses During an Investigation.
Investigations are turned into reports. Those reports, in turn, are reviewed by management and sometimes even by governmental agencies. You cannot promise to limit the disclosure of information obtained from witnesses during investigations. You can only promise to do your best to keep the information limited to those on a "need to know" basis.
4. Disclose Information Beyond Those Who Have a "Need to Know."
Conversely, you can get the company and yourself in significant legal trouble by disclosing far too much information about either the complainant or the accused during the investigation. Claims for defamation and invasion of privacy are not uncommon against the overzealous investigator who has said way too much to people who did not have a "need to know."
5. Prejudge Prior to or During an Investigation.
Sometimes an investigator will be tempted to tell the worried accused person not to worry because the person complaining is a "chronic complainer" or "whiner." Resist the temptation to get caught up in this type of labeling. It will seriously undermine your credibility as an investigator, as well as the results of the investigation as a whole. You can be assured that witnesses share with one another such comments by an investigator.
6. Conduct an Inadequate Investigation.
Make, take, and maintain good notes during your investigation. Failure to do so will lead to negative inferences that you either didn't take the investigation seriously, or you were not thorough or adequate enough for the investigation to be credible. One of the primary ways in which attorneys attack investigations is discovering that information was revealed by witnesses that, if followed up, might have corroborated one of the parties' positions.
7. Investigate in a Biased Manner.
The investigation must be objective and unbiased. Treating the complainant as the target of the investigation or investigating only unfavorable information about the complainant will lead not only to a discredited investigation, but probably to a claim of retaliation as well.
8. Don't Warn About Protection From Retaliation.
As an investigator, you should tell parties and witnesses that they are protected from retaliation both during the investigation and after.
9. Tell Witnesses Not to Talk to the Complainant.
The investigator may have the complainant's best interests in mind when he or she tells witnesses not to discuss the investigation with the complainant. The problem is that, if the witnesses hear you say "don't talk to the complainant (about anything)" and that's how they behave, you can expect to be hit with a retaliation claim alleging that the company-through the investigator-directed employees to shun the complainant.
10. Fail to Provide Written Reports If Outside Investigation Is Used and Adverse Action Is Imposed.
If you are using an outside professional to conduct investigations, you need to be aware of the Fair and Accurate Credit Transaction (FACT) Act. Under the FACT Act, communication must be made between the investigator and the employer in connection with an investigation of (1) suspected misconduct relating to employment; (2) compliance with federal, state, or local laws and regulations; (3) the rules of self-regulatory organizations; or (4) any preexisting written policies of the employer. Moreover, the FACT Act requires that after taking any adverse employment action based on an investigation that fits this criterion, the employer must disclose a summary report to the employee.
Practical Application
Workplace investigations are fertile grounds for employment litigation. They must be taken seriously—with considerable forethought given—to avoid the biggest mistakes that can lead to trouble.
Gilbert M. Román is a partner in RJ&L's Denver office where he focuses on labor and employment law, litigation, and Alternative Dispute Resolution. Mr Román provides assistance to clients on a wide range of employment-related issues, including the Americans with Disabilities Act, the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act. He is called upon by employers to conduct workplace investigations. Mr. Roman is a graduate of the University of Michigan Law School.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
