Workplace Investigations Blog : California Employment Investigation Lawyer & Attorney : Debra Reilly Law Firm : CA Personnel, Sexual Harassment & Equal Employment Opportunity (EEO) Investigator

This is the second of a 4-part posting concerning recommendations an employer should consider before, during, and after an employment investigation to resolve any lingering bitterness by employees.

Teachable Moment

Suppose an employee complains that her supervisor has exposed her to racial harassment. The investigation determines that while inappropriate remarks were likely made, the remarks do not qualify as legally cognizable harassment.  A common mistake might be to conclude the investigation with a finding of "no harassment" and go back to business as usual.  This is a mistake.  If an investigation uncovers discord between certain employees, the employer should consider this an opportunity to restore respect and dignity to the workplace, through diversity, anger management, or harassment training.   A workforce that gets along on a personal level is less likely to result in legal actions.  Thus, even if a workplace investigation concludes that the accused employee should not be disciplined or terminated, the employer would be wise to consider whether any group trainings could be useful, both to avoid reoccurrence and to foster harmony.

Separation of Complainant and Accused?

Following a workplace investigation, an employer may believe that the complaining employee and accused employee should be separated to limit their interactions.   Often, this means a job reassignment for one or both.  While many employees see this as a harmless measure, employers should only proceed with the most extreme caution, preferably with advice of counsel; reassigning a complaining employee to a different job position following a complaint could be viewed as retaliation and should only be done if there are no other practical options.   Even if you move a complaining employee to a position of equal pay and benefits, if there is reason to believe that the complaining employee's new job is less desirable or less prestigious, then a court could construe such a reassignment as retaliation.

For example, in Burlington Northern & Santa Fe Railway Co v. White [PDF] , a female employee complained about a supervisor's inappropriate comments about women.  Following an investigation, the employer moved her to another position to separate her from the supervisor.  The U.S. Supreme Court construed this move as retaliation, even though the new position had the same pay and benefits, because it could be seen as a less prestigious position.  For this reason, employers should only reassign a complaining employee if he or she wants reassignment, or if the reassignment cannot be construed as retaliation.  Further, the prior written consent of the complaining employee should be obtained, if possible.

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This is the first of a 4-part post concerning what steps an employer and/or investigator can take to heal the bitterness in a workplace before, during, and after an employment investigation.   

Employers often think that the most important part of a workplace investigation is deciding whether a complaint of harassment or discrimination is valid and, if so, what corrective action needs to be taken.  While it is important for the employer to bring the investigation to a conclusion, it is equally critical for the employer to ensure that the complaining employee does not feel retaliated against and to heal any lingering tensions the investigation causes.   This may sound easy enough, but workplace investigations often lead to emotionally charged work environments, which in turn foster animosity and complaints of retaliation.

If a complaint of harassment, discrimination, or employee misconduct is dismissed, the complaining employee may feel further victimized.  If, on the other hand, the accused employee is disciplined, the accused employee may come to harbor feelings of resentment, especially if he or she feels wrongly accused.   Thus, regardless of the outcome, employers should take steps to heal wounds and restore egos. This 4-part posting provides steps employers can take to help return to business as usual.

Communicate with Employees:  Employers should always follow-up with both the complaining employee and the accused employee when the investigation concludes.  Although this seems obvious, many employers either forget to take this step, or intentionally refuse to do so out of confidentiality concerns.   Employers need not, and should not, disclose the exact findings of the investigation or the corrective action (if any), if doing so would jeopardize confidentiality or future investigations.  If the rumor mill churns out what transpired in the current investigation, then future victims will certainly think twice before bringing forward a complaint.  You do not want to provide future victims with a reason or excuse not to follow the company’s reporting policies.  It is important to communicate to all employees involved that each complaint has been fully investigated and that appropriate action (if any) has been taken to remedy the situation.

Communications back to employees should always take place as soon as possible. The virtue of prompt follow-up cannot be overstated. No matter how detailed or thorough an investigation may be, if a month passes between the complaint and the response, the employee will likely feel that the employer has not taken his or her complaint seriously.  At the least, let the complaining employee know that the investigation is ongoing and that things are happening.   An employer can help restore harmony to an emotionally-charged workplace merely by processing and investigating complaints in a timely manner.

Further, it is almost always a good idea to document your follow-up with the complaining employee, especially when the complaint is of a serious nature. Even if the investigation concludes that termination or discipline is unwarranted, the follow-up to the complainant should express gratitude for bringing the complaint to the employer's attention. It should also encourage the employee to continue using the internal grievance procedure should the alleged behavior continue, retaliation occur, or future issues arise.

It should be noted that most of these actions must come from the employer, but an employment investigator may make these types of recommendations to the employer as may be needed.

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