An employer’s thoughtful, professional and fair response to an employee’s internal complaint of harassment, discrimination or other employment-related issues can serve as an effective defense against legal claims that arise later out of the complaints. In some cases, an effective investigation and appropriate response has even thwarted legal claims from arising in the first place.
A disorganized, unprofessional, and/or apparently unfair and unbalanced investigation, however, can also work against an employer. Published case law from the courts demonstrate that an employer’s failure to promptly and adequately investigate complaints of discrimination and harassment can result in a straight path to a jury (sometimes with costly jury verdicts), not to mention poor employee relations and difficult-to-defend lawsuits.
The following are some key issues employers must consider in connection with an investigation.
What is a complaint that triggers an employer’s obligation to investigate? Employers with policies that require employees to put any and all complaints in writing are not enforceable as a matter of law. Recently, for example, the U.S. Supreme Court held that an employee had a right to sue his former employer even though the employee’s complaints of wage and hour issues were never put in writing. Thus, managers and HR professionals should be trained to identify and appropriately respond to emails, conversations and other forms of non-written communications that are suggestive enough to put the employer on notice that the employee is asserting statutory rights (such as a discrimination complaint, even if phrased as nothing more than unfair treatment).
The complaint is in – now what should an employer do? Although employers are legally obligated to move promptly upon receipt of a complaint, employers should not start investigating without a thoughtful plan. For example, who is the proper investigator? Investigations and investigators need to be unbiased. The investigator should be someone outside the chain of command of the complaining party, and a recent U.S. Supreme Court opinion put more pressure on employers to ensure that no one with a discriminatory animus is in a position to influence the outcome of the investigation (also known as a “cat’s paw” issue). In some cases, such as when the allegations are particularly severe or involve high-level management, an investigatory team and/or someone outside the company may be in the best position to conduct the interview.
The investigator should also decide, up front, who the potential witnesses, and what the scope of the investigation will be. Finally, the location of the interviews should be decided up front. The investigator should consider a quiet, confidential environment, and some place that will make the witnesses feel comfortable (in an effort to solicit the most and honest information).
Are there any “tricks” to interviewing the accuser and the accused? The bottom line here is to treat both the accused and the accuser fairly and similarly in their respective, separate interviews. As a preliminary matter, the investigator’s preliminary questions should revolve around safety: Is the accused working in an environment where he or she is safe, or should the accused (and possibly the accuser) be placed on a paid leave of absence pending the results of the investigation? These considerations are particularly true in smaller work environments. Second, both the accused and the accuser should be asked who their key witnesses are (and each of those witnesses should be followed up with). Above all else, the investigator should feel free to follow up with both the accused and/or the accuser if new information comes to light during the investigation that had not been previously addressed.
What if someone wants to bring a witness to the interview? In union environments, non-managerial employees have a right to have a union representative attend an investigatory interview. Generally speaking, however, employees do not have a “right” to bring a lawyer, friend or co-worker to an investigatory interview (although some exceptions exist for employees of public/government employers). In some cases, however, the investigator should balance the need for clear, complete information from a witness who might feel more comfortable sharing information with a “support network” present, versus adhering to what the law says on the subject.
What are some investigation documentation tips? Notes from an interview should be turned into an official memorandum as soon as possible after the conclusion of an interview. Handwritten notes from an interview, although potentially a good record, can be difficult to read and sometimes difficult to interpret if shorthand is used by the interviewer. The interview memoranda, and any investigation summary memoranda, should be clear, concise and free of grammatical and spelling errors. Dates, the location and lengths of the interviews, and any other pertinent facts should be included. Remember: The investigator’s notes could be blown up as an exhibit at trial some day. If you were an outsider to the company, what conclusion(s) would you reach about the fairness of the investigation or its adequacy if your investigator’s notes were scrutinized? Finally, keep all communications with company counsel separate and apart from notes and memoranda created in connection with the investigation, to preserve attorney-client privilege.
If action is taken in response to the complaint, or if no action is taken, the employer must be able to corroborate that decision because of the risk that legal claims or a lawsuit could follow. An employer’s best preventative medicine and defense to such legal claims, then, is a thorough, fair, and well-documented investigation.
Tamara E. Russell’s 14-year legal career has focused exclusively on guiding employers and management through the labyrinth of federal and state employment laws. You can reach her at trussell@barran.com or 503-276-2182.
