We have all heard the phrase “the best defense is a good offense.” The military theorist Carl von Clausewitz is often credited with coining this expression, but today we most often hear it used in the context of sports. This phrase also serves as great advice for employers faced with employee complaints. The best defense against allegations of harassment, retaliation or employee misconduct is a good investigation.
An effective workplace investigation can serve as both a shield and sword. Employers may shield themselves against liability for claims of harassment by raising an affirmative defense that reasonable steps were taken to stop and prevent the alleged harassment. In order to assert this defense, employers must respond promptly to the complaint, conduct a thorough and fair investigation and take reasonable action to end and prevent the conduct from occurring again.
A workplace investigation also serves as a sword to address employee misconduct by providing employers with a solid record on which they may base disciplinary action. An employer should promptly investigate employee misconduct to limit the wrongdoer’s opportunity to launch a pre-emptive strike by engaging in protected conduct before the employer takes action. A thorough investigation includes interviewing the employee accused
of misconduct.
This interview presents a chance for the employee to tell his side of the story and for the employer to hear the employee’s explanation of the incident, before taking action. A prompt interview allows the employer to hear directly from the employee, before the employee is coached on what to say by a professional. This results in a record for the employer to rely upon when deciding whether or not to take corrective action. Conducting an effective workplace investigation gives an employer confidence that its action will withstand scrutiny.
There are three hallmarks to an effective investigation: promptness, fairness and thoroughness. In order to ensure a fair investigation, it is critical to separate the function of convening the investigation from the function of conducting the investigation. The individual responsible for convening the investigation will make decisions related to the first steps of the workplace investigation before turning the investigation over to the individual responsible for conducting the investigation. Employers who conflate these two functions run the risk of an investigation that lacks fairness and independence.
A thorough investigation requires an employer to process a methodical and consistent protocol. Specifically, employers are well served to appropriately intake and receive the complaint. This step requires the employer representative to focus on empathy and neutrality when listening to the complainant and refrain from challenging the complainant’s version of the facts. Next, the employer must assess the complaint, and determine whether to conduct a full, abbreviated or no investigation based on the severity of the allegations. The third step of a thorough investigation is to select an investigator who is free from perceived bias, able to start immediately, and, ideally, a skilled interviewer. At this point, the convening authority needs to work with the investigator to establish the scope of the investigation (i.e. fact-finding only or recommendations about violations). From here, the investigator collects and analyzes relevant documents.
With this information, it is vital for the investigator to refine the complaint by cataloging the allegations and the underlying factual claims. A clear framework of the allegations and factual claims allows the investigator to identify witnesses and structure interviews to collect evidence that support or refute the factual claims in the complaint. Finally, the investigator must synthesize the entire investigation into a record for the convening authority. This record should be a standalone document upon which the convening authority may make a decision as to what, if any, corrective action to take. Imposition of the corrective action is not the last step of an effective investigation; rather, the employer must close the loop with the complainant and the respondent of the investigation by communicating the outcome. By following these ten steps, employers can ensure a thorough investigation into employee complaints.
This process to achieve a prompt, fair and thorough investigation requires an investment of time, energy and sometimes money by an employer, but this is a good investment considering the potential liability for harassment or a wrongful termination lawsuit. In the end, von Clausewitz provides sound advice for employers — investing in a good offense is the best defense.
Kyle Abraham is a partner at Barran Liebman LLP in Portland where he represents employers in traditional labor and employment law matters. Contact him at 503-276-2132 or kabraham@barran.com
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