As an employer, it is essential to have clear and accessible policies and procedures in place so that employees can report concerns and the employer is prepared to take appropriate action in response to receiving a complaint. It should be clear to employees how they can make a complaint and who they should direct concerns to, particularly if they have observed or suspect discrimination, harassment, or retaliation in connection with their employment. While employers may choose to handle workplace investigations in different ways; there are some basic considerations that may be applicable to all employers.
Is the employee venting or do they have a complaint warranting an investigation?
Keep in mind, even complaints that may initially appear as a minor employee issue can escalate if not appropriately addressed. Taking employees’ complaints seriously and conducting thorough investigations, where appropriate, can prevent costly litigation and protect an employer’s reputation.
Distinguishing between a minor employee disagreement and those complaints that need formal investigation can be challenging for employers. When in doubt, it is best practice for employers to take all complaints seriously.
How to distinguish what type of claim is being made?
Typically, there are three types of complaints made that may require an investigation- harassment, discrimination, and retaliation. Harassment refers to behavior that is personally offensive, intimidating, or hostile or interferes with work performance. Discrimination occurs when someone is treated differently, or less favorably, for an improper reason. Retaliation happens when someone is punished for engaging in a protected activity.
After a complaint is made, what should you do as an employer?
Once a complaint is made, whether written or verbally, employers should determine the scope of the issue and determine if an investigation is warranted. If so, employers should identify who best to lead the investigation, often a member of the HR team or a neutral external investigator, to ask key questions to obtain relevant facts and information and ensure all parties, and any potential witnesses, have the opportunity to be heard.
As a best practice, investigations should begin with interviewing the complainant to gather facts before speaking with the alleged offender. If the alleged offender is reluctant to participate in interviews and you don’t have a policy requiring cooperation, consider using questionnaires or other methods to gather information. Another important goal is to maintain as much confidentiality as possible. While maintaining confidentiality is crucial, employers should never guarantee parties complete confidentiality but limit the dissemination of information to a “need to know” basis. Lastly, it is helpful to set expectations with the complainant around how long the investigation might take and provide updates to the parties involved.
Who should be conducting interviews?
All interviews should be conducted with the ultimate goal of a fair and unbiased investigation, allowing everyone to express their perspectives. It is also important that the interviewer does not have a stake in the outcome or have a personal relationship with the parties involved. If no suitable internal investigator exists, consider appointing an independent investigator to keep the process fair and impartial. When a resolution is reached, the conclusion should be documented based on the findings. Employees involved should be informed of the decision made and if any further action will be taken. Employers should also periodically check in with the complainant after the investigation to ensure no further issues have occurred.
Checklist for effective internal investigations:
- Follow established policies & procedures around receiving and investigating employee complaints
- Identify the concern and investigate promptly
- Interview relevant parties such as the individual(s) who made the complaint, the alleged employee that the complaint was about, and any potential witnesses
- Gather, collect, and review documentation
- Share updates & outcomes with relevant parties
- Make a final determination and recommend corrective action (as appropriate)
Mineral*: Identifying and Preventing Workplace Harassment
Fisher Phillips: Conducting Effective Workplace Investigations
Notes
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Disclaimer
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal or tax advice. If you have any legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.