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A company’s response to workplace complaints can determine the company’s liability for employment claims, not to mention have a significant impact on the vitality of the business. From a legal standpoint, employers may be able to limit liability for harassment claims by responding promptly to complaints, conducting an appropriate and reliable investigation, and taking reasonable action based on the results of the investigation. From a business standpoint, proper investigation practices are crucial to strengthen internal morale and promote the overall company reputation. Workplace harassment is particularly newsworthy, and poorly handled complaints can certainly cause long-term damage to a company.
- Respond Promptly
Employees may raise complaints of workplace harassment in a variety of forms, and whether the complaint is raised verbally to human resources, in written format as official complaint documentation, through a hotline, in a letter from the employee’s attorney or otherwise, employers must respond quickly to prevent further harm.
At this stage, employers should assess the complaint and whether an investigation is warranted. Although some employers take the approach of investigating all concerns to demonstrate that the company takes them seriously, investigations are particularly necessary when the complaint alleges a violation of law or policy, or if it may result in disciplinary action. The company does not necessarily need to investigate every employee concern, but should always investigate concerns related to potential harassment or discrimination and complaints that allege violations of serious rules.
- Choose the Right Investigator
Next, the employer should select an appropriate investigator to handle the investigation. While some investigations can be handled internally, others warrant hiring an external investigator. For example, an external investigator may be necessary for particularly sensitive matters where specialized experience is important, complaints involving conduct of senior management where greater separation and impartiality are necessary or situations where company personnel simply do not have capacity to conduct a thorough and prompt investigation. Whether internal or external, the investigator must be well-trained, experienced and impartial.
Human resource representatives are often appropriate internal investigators, but employers should keep in mind that the work could be discoverable in a later lawsuit unless the investigation was conducted at the direction of an attorney. In-house counsel or the company’s attorney may also be appropriate investigators, but keep in mind this cannot be the same attorney that would serve as legal counsel in connection with representing the company in any subsequent lawsuits on the same subject matter. Further, Oregon employers cannot use an outside consultant as an investigator unless the individual is a licensed attorney or licensed private investigator.
- Conduct an Appropriate and Reliable Investigation
The investigation itself involves reviewing relevant documents, interviewing witnesses and writing a report to document the findings.
Once the scope of the investigation is determined, the investigator will collect and review relevant documents. This often includes an employee handbook, collective bargaining agreement, organizational chart, prior complaints, incident report(s) and relevant emails. Some investigators will review an entire personnel file for context, while others will review select documents to corroborate witness’ statements.
The complainant is generally interviewed first, followed by other relevant witnesses and the subject last. Interviews should take place in a neutral location. The interview should start with a brief summary of the complaint and nature of the allegations, an explanation of the investigator’s role as the fact finder, and a reminder of the company’s policies against retaliation for participating in the investigation.
The investigator should also note limits on confidentiality. While witnesses are often concerned about whether and how the information they provide will be shared, the investigator should inform witnesses that the investigation report will be turned over to the employer and may need to be disclosed to others. The investigator should not promise confidentiality, but to ease concerns and encourage truthful feedback, the investigator can suggest writing the report with some anonymity or aggregating input from multiple witnesses when appropriate.
The investigator will ask each witness about key facts from their personal knowledge, and this generally involves open-ended questions. At the end of the interview, the investigator should always ask witnesses to identify other witnesses or documents and if there is anything else he or she would like to share.
The investigation report documents the investigation process, evidence reviewed during the investigation, analysis of the documents and witnesses, the conclusions reached on the relevant scope and an assessment of credibility where necessary. This is a written record for the decision-makers who will separately determine the appropriate next steps.
- Take Reasonable Action Based on the Results
Based on the investigation findings, the internal decision-maker must determine whether there is a need for corrective action. This decision should be consistent with the report findings and if corrective action is appropriate, it must be sufficient to end and prevent the behavior at issue, as well as redress the past effects of the behavior where possible.
Last, the company should communicate a summary of the outcome of the investigation to the complainant, whether the concerns were substantiated, and either that action will be taken or that the situation will be monitored, and that the complainant should not be subjected to retaliation for bringing forward his or her concerns.
Whether conducting workplace investigations internally or hiring an external investigator, it is always in the company’s best interest to take all necessary steps to complete an appropriate and reliable investigation.
Heather Fossity is an attorney at Barran Liebman LLP. She represents employers and management in a variety of employment matters, including conducting workplace investigations. Contact her at 503-276-2151 or hfossity@barran.com
