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

An article posted in the National Law Review on January 31, 2010, titled "Top 5 Pitfalls to Avoid When Conducting Workplace Investigations" by employment attorney Julie Vogelzang is worth the read.  She lists and discusses the following pitfalls:

PITFALL NO. 1:  Failing to Promptly Begin the Investigation

She notes that "one of the worst things a company could face is a jury trial where a juror believes that the companied lagged in looking into the issues, thus leading to the potential for ongoing misconduct that was not stopped immediately."

PITFALL NO. 2:  Failing to Use an Experienced and Neutral Investigator

She notes that some "employers err if they randomly assign the investigation to someone without experience [because] . . .  the employer can face potential exposure for the failings of the investigator, in the form of claims of an inadequate investigation or punitive damages aimed at punishing the employer."

PITFALL NO. 3:  Punishing the “Victim”

She notes that it is the "better practice to temporarily transfer or suspend the accused with pay pending the investigation. This way, the person bringing the complaint is not punished or put in any disadvantaged position for having come forward."

PITFALL NO. 4:  Not Having a Reporting Structure in Place

She notes that "it is prudent to set up an 'investigation team' at the outset. This is so that the investigation and any actions taken do not fall exclusively on the shoulders of one person. If there are layers of management involved, issues can be vetted by a group rather than one person, and any subsequent claims against the investigator of wrongdoing, lack of thoroughness, bias, etc. are significantly minimized."

PITFALL NO. 5:  Promising Confidentiality

She notes that the "investigator will be reporting the statements to management; they may be sharing the statements with other witnesses so that a thorough investigation can be conducted; and if there is ever a lawsuit brought, the statements will likely need to be disclosed at that time."

I do appreciate the idea of an investigative team approach; however, only one employer I have ever worked with utilized it-- the United States Postal Service ("USPS").  The USPS has an EEO Analyst (working from an isolated department, who has no knowledge of the parties involved) review each investigative report prepared by the EEO investigator before the "Final Report" can be submitted.  The Analyst tries to make sure there are no holes in the investigation, for example, have all relevant questions been asked, have all relevant witnesses been interviewed, and have all relevant documents been obtained.  While this may lengthen the process somewhat, potential claims against the investigator of wrongdoing, lack of thoroughness, and bias can be minimized. 

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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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