When an informal or formal complaint is made, the employer should take immediate steps to stop the alleged conflict, protect those involved and begin investigations. Under many laws (i.e. Title VII, ADA, ADEA, OSHA, Sarbanes-Oxley, state and local nondiscrimination laws, etc.) employers are legally obligated to investigate complaints (harassment, discrimination, retaliation, safety and ethical) in a timely manner. In addition, any appropriate corrective action is required to be taken by the employer to ensure illegal actions/behaviors cease immediately.
Responsiveness to a complaint and an investigation will not only yield the best information and evidence, but it will also enhance both the investigator’s and the employer’s credibility. Investigations can help the company identify and resolve internal problems before they become widespread. Since every complaint has the potential to become a lawsuit, employers should investigate every case in a manner in which it can be presented to a court of law, if necessary. As potentially disruptive as investigations can be, they must be prompt, thorough and effective to ensure everyone’s protection. The following steps should be taken as soon as the employer receives a verbal or written complaint.
Step 1: Ensure confidentiality
The employer must protect the confidentiality of employee claims to the best of its ability. At the same time, the employer has to conduct a prompt and an effective investigation. Therefore, it may not be possible to keep all information gathered in the initial complaint, such as interviews and records, completely confidential. The employer should explain to the complaining party and all individuals involved in the investigation that all information gathered will remain confidential to the extent possible for a thorough investigation. It should also be explained that in order to conduct a prompt and effective investigation, some information will be revealed to the accused and potential witnesses, but that information will be shared only on a “need to know” basis.
Step 2: Provide interim protection
One of the first considerations may be the need to take immediate measures for the protection of the accuser or the alleged victim. It may be necessary to separate the alleged victim from the accused to guard against continued harassment or retaliation. Actions such as a schedule change, transfer or leave of absence may be necessary; however, employees should not be involuntarily transferred or burdened. These types of actions could appear to be retaliatory and result in a retaliation claim. The employer and the accuser must work together to arrive at an amenable solution. Employers may wish to seek legal advice prior to making any decisions.
Step 3: Select the investigator
The appropriate investigator should possess all of the following:
- An ability to investigate objectively
- To have no “stake in the outcome.” They should not have a personal relationship with the involved parties. The outcome should not directly affect the investigator’s position within the company.
- Skills that include prior investigative knowledge and working knowledge of employment laws
- Strong interpersonal skills in order to build a rapport with the parties involved and be perceived as neutral and fair
- Attention to details
- The right temperament to conduct interviews
- To be in a position to maintain confidentiality, be respected within the organization (since his or her conclusions will be used to make a determination), have the ability to act as a credible witness and, if internal, have the likelihood of continued employment with the company
Employers generally use the resources of HR, internal security, legal counsel (inside or outside) or a third-party investigator. There are distinct advantages and disadvantages to each type of investigator that can be selected.
HR is the most common choice. Employers often assign the responsibility for investigations to the HR staff because of the unique job training as well as prior experience in conducting workplace investigations. HR representatives hold a particular advantage because of their superior interpersonal skills; employees typically feel comfortable with them and are willing to confide in them. HR also has the ability to remain impartial, has familiarity with the employees, as well as the knowledge of the company and employment laws. The disadvantage is that employees may associate HR representatives too closely with the company management and therefore not perceive them as neutral in the investigation. Additionally, management may object if the HR professional has a close personal connection with involved employee(s).
Internal security is another option for an investigator. These professionals typically have training in investigation methods that allow them to obtain information from sources that a lesser-trained investigator may overlook. Conversely, because of their training and assertive style, internal security representatives may be viewed as intimidating by employees and therefore they become less productive. Consider the specific security personnel’s interpersonal skills, personal relationships with those involved and personality or approach to conflict. Security personnel may also have less of an employment law background, thus limiting their ability to conclude whether sources are reliable and potentially admissible in court.
Outside or non-lawyer third-party investigators are more commonly used when an employer does not have an internal person who possesses the necessary qualifications, the time to conduct the investigation or if the person accused is among the senior leaders in the organization. They can provide objectivity that an internal investigator may lack. An employer may use former senior-level employees to conduct investigations because of their knowledge of the company and employees, or a human resources consultant or other independent investigator because of his/her knowledge specific to investigatory methods and techniques.
Counsel investigators, both in-house and outside, have ethical and privileged considerations. They must disclose to the parties involved in the investigation the purpose of the investigation and the attorney-company relationship. Counsel investigators should clearly disclose that the company is the client, not the accused employee. Outside counsel brings objectivity to the investigation but lacks knowledge of the employer’s culture and the employees. In-house counsel does have knowledge of company culture and its employees. However, both in-house and outside counsel can be perceived as intimidating. This could restrict the employees’ willingness to be open and provide information.
An employer might also consider a team approach. It provides a multitude of experience, resources and ideas. There is a potential to make up for areas a single investigator may lack, such as experience, expertise in employment law, the ability to obtain witness information or knowledge of internal issues and culture. Generally, a good team covers all internal and external gaps that would be associated with a single investigator, which typically is an outside attorney working with HR. The team approach provides the ability to collaborate in the event that the accuser, the accused or a witness alters their earlier statements.
Step 4: Create a plan for the investigation
An investigation must be planned to be effective and properly executed. A complete plan should include an outline of the issue, the development of a witness list, sources for information and evidence, interview questions targeted to get crucial information and details, and a process for retention of documentation (i.e. interview notes and evidence like e-mails, etc).
The use of all available resources will assist the investigator in developing a proper plan. The EEOC provides guidelines and definitions to employers on specific topics such as sexual harassment and discrimination. Additionally, there are numerous sources on the Internet and in publications that can be purchased to assist and even provide a step-by-step guide.
Interview plan example:
Day One (back conference room by HR reserved entire day)
Allow time between interviews to type up notes and adjust to new information/evidence/witnesses. The interview plan may call for conducting interviews earlier or later as needed to allow enough time to gather all the information needed, but keeps the investigation flowing as efficiently as possible. Additional time may be necessary depending on the amount of witnesses and information provided.8 a.m. Interview accuser (to clarify details and gather evidence and witnesses)
9 a.m. Read over interview notes and fill in details while still fresh
Determine if it makes sense to interview accused next or some witnesses
10 a.m. Next interview - potentially accused (get their side of story, gather evidence and witnesses)
11 a.m. Complete notes and prepare for next interview
1 p.m. Interview potential first witness and take time to complete interview notes
2 p.m. Interview second witness and take time to complete interview notes
3 p.m. Interview third witness and take time to complete interview notes
4 p.m. Review notes for entire day and make plan for second day
Day Two (back conference room by HR reserved entire day)
9–3 p.m. Finish any additional witness interviews
Handle any follow-up interviews with accused, accuser or witnesses as needed to clarify information previously discussed or ask new questions about evidence/information disclosed after initial interview
3–5 p.m. Review interview notes, evidence and credibility assessment
AM Finish review of investigation process and establish the proposed recommendations for action.
PM Discuss proposed resolution with upper management
AM Create any relevant disciplinary actions, warnings or memos
PM Closure meeting with accused
Closure meeting with accuser
Write investigation report
Step 5: Develop interview questions
Questions should be developed ahead of time in the planning stage, although additional questions will be added throughout the investigation as more evidence and information is shared. Good questions are relevant and designed to draw out facts without leading the interviewee; they should be open-ended to elicit as much information as possible. The EEOC has sample investigation interview questions, and SHRM has sample questions for the accuser and questions for the witnesses that may get you started.
Step 6: Conduct interviews
Once the appropriate investigator has been selected, an investigation plan has been developed, and interview questions have been developed, interviews can be conducted. The investigator should inform all parties involved of the need for an investigation and the urgency for confidentiality, and then explain the investigation process.
The investigator should focus on being impartial and objective in order to gather and consider relevant facts. Prevention from pushing the investigation in any particular direction is imperative. The investigator should never offer any opinion or say anything to interviewees that will discredit his or her impartiality. Objectivity must be maintained with every interview.
Taking notes, looking for inconsistencies, looking for opportunities for more evidence and names of other potential witnesses should be a consideration as well. Asking the employee to write down what happened may help to find inconsistencies. There may be a disparity between what the employee is willing to write and what he or she told you in the interview. SHRM has an example of Investigator Interview Methods/Techniques.
Credibility determinations: Interviews provide differing accounts and even conflicting versions of the events. Be aware that the issue is very personal to employees involved. Because of the personal and emotional nature of the issue, their individual perception of what happened can be clouded by personal interests or, if their job is on the line, they may even lie. Investigators must consider the credibility of the individuals being questioned during an investigation and use techniques (i.e. inherent plausibility, ability, demeanor, motive, motive to falsify, corroboration, past behavior and past accusations) in assessing credibility.
Step 7: Make a decision
Through the investigation, the investigator must be careful not to jump to any conclusions before all of the facts are available. Once the interviews are conducted, other necessary procedures, such as evidence collection, are completed. When any credibility issues have been resolved, the investigator will evaluate all the information for a formal recommendation. The investigator and/or member of management, as well as legal counsel, should make the final determination of any employment actions that are warranted based on the investigative report. The employer must consider all of the parties involved as well as company processes, not just whether the accused is guilty, in the final determination.
Step 8: Closure of investigation
Once a decision is made, the employer should:
- Notify both the complaining employee and the accused of the outcome. It is important to let the complainant know that the company took the complaint seriously and took appropriate action. Ensure the complainant agrees that he/she has been properly heard and understood, even if he or she is not in agreement with the results. Set a timeframe to follow up with the complainant to ensure there are no other issues and that he or she is settling back into the work environment. Encourage communication and follow up until the complainant is comfortable again. Finally, remind all parties to preserve confidentiality. SHRM has information on why it is important to follow up with those involved in the investigation as well as a webcast.
When necessary, take corrective action that is appropriate to the situation, such as discipline or even termination.
- Look at any damages incurred by the victim and discuss with legal counsel how to remedy those damages.
- Determine if education, such as sexual harassment training or anger management training, would be beneficial to the individual or all employees.
- Consider if there is a need to review, modify and/or redistribute workplace policies.
- Determine whether a review of investigation and complaint resolution processes is necessary.
Step 9: Develop written summary investigation results
If operating on the premise that every investigation of a serious nature could potentially be heard and reviewed by a court, the employer will want to consider preparing a final investigative report. Keep a clear paper trail of the evidence, such as examining documentation of previous employee behavior and incidents. The investigator should have a clear record of everything done, any findings as well as other steps taken during the investigation. It is also necessary to document interviews with the accused, the accuser and witnesses. Investigators should ensure their notes from interviews are as factual as possible, have as much relevant information as possible, are dated and indicate the duration and time of the interview.
The final report will summarize:
- The incident or issues investigated including dates
- Parties involved
- Key factual and credibility findings including sources referenced
- Employer policies and/or guidelines and their applicability to the investigation
- Specific conclusions
- Party (or parties) responsible for making the final determination
- Issues that could not be resolved and reasons for lack of resolution
- Employer actions taken
The goal of the document is to ensure that if a court, jury or government agency were to review it, they would conclude that the employer took the situation seriously, responded immediately and appropriately, and had a documented good-faith basis for any actions taken during or as a result of the investigation.
Once the investigation is completed and documented, the employer needs to determine what documentation should be retained and for how long.