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

This is Part 4 of a 4-part posting on recommendations to consider before, during, and after a workplace investigation.

Most of the suggestions in this 4-part posting go beyond the bounds of what a workplace investigator is retained to do.  Sometimes the employer does not want written recommendations; however, the workplace investigator can offer many of the above recommendations verbally at the post-investigation stage as a means to help heal the environment.  The workplace investigator may also want to suggest some of the following remedial measures to help the employees set aside their differences:

1. The employer should designate someone, preferably a Human Resources professional or someone in a managerial capacity with whom the complainant is comfortable, to check back every week or so to see how the complainant is doing and to ask if any new or related problems have arisen. If no problems have shown up after a couple of visits, drop back in once a month to see how things are going.   It is better to be pro-active than to let a new situation mutate out of the original complaint.
2. Check back with the accused employee weekly or monthly to see if any coaching or further on-the-spot training is needed. The accused employee may still have pent up anger and may need to vent to someone who is privy to the situation and can lend a listening ear and offer sound, yet understanding, counseling.
3. Consider offering more frequent (or revised) harassment prevention training to employees and supervisors, and be sure that the training offered includes all forms (i.e., all protected classes) of discrimination, harassment, and retaliation.
4. Consider offering the accused employee and the complainant Employee Assistance Program (EAP) services, individualized coaching, or mentoring to help deal with any lingering emotions.
5. Determine whether company policies need to be revised to address particular issues that arose during this investigation if they are not adequately addressed within existing policies. Announce the changes to all employees.

To meet the important goal of healing any lingering tensions or wounds caused by a workplace investigation, an employer should, at the very least, communicate the results to the complaining employee and the accused employee without violating confidentiality. The employer should evaluate what the investigation has revealed about employee relations in general. The outcome may lead to revised company policies, new training, or re-evaluation of the complaint process, which every employer should welcome and embrace.

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Train Supervisors on What Constitutes Retaliation:  The U.S. Equal Employment Opportunity Commission (EEOC) has reported that claims including a retaliation charge rose by 23% in fiscal year 2008.   Vincent Cino, national director of litigation for Jackson Lewis LLP, says roughly 70% of discrimination suits handled by his firm include a retaliation claim.  These statistics are not surprising, considering that accused employees often harbor feelings of resentment following workplace investigations.

Resentment can lead to actions or words, which can be construed as retaliatory.   Suppose an employee complains that her supervisor has sexually harassed her.   The supervisor may be angry and hurt if he considers it a wrongful accusation.  The accused should be counseled that the complainant has a legal right to bring forward complaints of perceived harassment, discrimination, and retaliation, and may simply have a different perception of what occurred.

The accused employee should be cautioned that any inappropriate, post-complaint behavior or words can be construed as retaliation, regardless of whether the retaliation complaint has merit.  The accused employee should also be informed of possible examples of retaliatory conduct or language. Examples might include: (1) overloading the complainant with work, (2) removing work from the complainant, (3) stripping the complainant of highly valued or important duties or assignments, (4) changing the complainant’s work hours, (5) asking the complainant “off the record” why he/she made a formal complaint in lieu of working it out between themselves, (6) disparaging the complainant to others in the workplace, and (7) cutting desired overtime hours, to name a few.

Along these same lines, the manager who counsels the accused employee post-investigation should implement no major changes in work conditions without first consulting the human resources department and legal counsel.   Even a seemingly innocuous change may be perceived by the complainant as retaliatory.  If these changes are indeed necessary and based on legitimate business needs, it is a good idea to open the lines of communication with the complainant to talk the matter through before the changes are implemented.  The business reasons for the changes should also be carefully documented.   The human resources department can play an intermediary role in this process while the post-investigation healing period lingers.

Further, the accused employee should be reminded that witnesses, associates, and employed spouses or family members of the victim must not be retaliated against.  It is essential to educate supervisors and managers that protection extends to others beyond the complaining employee.

When training supervisors, or counseling them post-investigation, it is helpful to reassure them that it is natural to feel angry, fearful, or defensive toward an employee who accuses them of unlawful conduct.  However, they should be reminded that showing anger or acting upon it is more than merely unprofessional, it will exacerbate the problem and may give rise to a retaliation claim.

A thorough investigation procedure includes training managers and supervisors on how to deal with hurt feelings, embarrassment, and anger.

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