Let's Get Back to the Basics of Workplace Investigations When the Whistle Blows

May 6, 2015

By: David M. Ferrara

Conducting workplace investigations is one of the most challenging and most important duties that Human Resource professionals must take on.  With the slew of existing laws, how Human Resource professionals respond to complaints about harassment or other misconduct can have huge legal and practical implications for the employer.  Unfortunately, Einstein’s definition of insanity -- doing things the same way and expecting a different result -- all too often is at play when it comes to conducting effective investigations.  Unfortunately, employers make the same mistakes time and again, exposing themselves to potential legal liability.  These common mistakes often result in lawsuits being filed by the complaining employee or by the employee who is fired or disciplined.  Here is a list of 10 common mistakes Human Resource professionals should avoid to minimize unnecessary legal exposure. 1.  Failing to Investigate or Ignoring Complaints Failing to take action when a complaint is made is one of the biggest mistakes employers can make.  Choosing not to conduct an investigation after acquiring knowledge of the alleged inappropriate conduct will result most likely in the company being legally responsible for harm caused to any employee, client, and others due to the inappropriate conduct.  Regardless of how frivolous or unfounded the complaint appears, or who made the complaint, an investigation should be conducted.  Even allegations made by employees who have a history of making complaints or are regarded as “troublemakers” at work should not be ignored.  Equally important, the mere fact that the complaint may be anonymous does not excuse the failure to investigate.  Obviously, the task is more difficult but the investigation nonetheless should be conducted. 2.  Not Creating an Investigation Plan Failing to create a preliminary plan for the investigation creates serious issues because it often results in the purpose of the investigation being misunderstood or forgotten.  Before diving into the investigation, make sure you’ve thought about the five W’s:  (1) Why are you investigating?; (2) Who will conduct the investigation?; (3) Who are the witnesses that need to be interviewed?; (4) What evidence needs to be collected?; and (5) What is your investigation timeline? 3.  Taking Too Long to Investigate Delaying the initiation of the investigatory process after being notified of an issue may lead to employer liability.  Particularly in harassment and discrimination cases, an employer’s decision to delay an investigation may be viewed as subjecting the employee to additional unlawful behavior.  Nonetheless, making sure an investigative plan is properly prepared remains important.  Therefore, Human Resource professionals must strike a balance between adequately preparing for the investigation and avoiding unreasonably long delays. 4.  Not Having Trained and Ready Investigators or Selecting the Wrong Investigator A failure to have trained investigators prepared to promptly respond to complaints can result in an ineffective and drawn out investigation.  Employers should have a few employees trained to conduct an impartial, professional, and credible investigation.  Another option is to hire a trusted Human Resources colleague or use in-house or outside counsel to conduct the investigation.  No matter who you choose as the investigator, making sure that the investigator is trained and able to begin the investigation promptly is key. Depending on the nature of the allegations, you also need to be sure you have selected the right person for the job.  For example, having a former senior law enforcement official interview relatively young employees regarding highly sensitive allegations of a sexual nature may not be the most effective way to get the truth! 5.  Not Doing a Thorough Investigation Conducting a sloppy investigation by failing to interview necessary witnesses, failing to review relevant documents, and ignoring potential issues that come up during the investigation can create just as much legal exposure as not doing an investigation at all.  You should make sure that every investigation is thorough, not only to ensure that the alleged misconduct is properly dealt with, but also to counteract any accusations by an employee that the investigation was ineffective. 6.  Conducting Unlawful Searches Searching an employee’s personal belongings or monitoring certain communications without consent can result in the employer breaking several federal and state laws.  To avoid liability, it is good practice for employers to make employees aware of its surveillance policies and obtain consent from employees to monitor and access communications and information contained on any electronic devices employees are given access to at work. 7.  Using Aggressive or Unwelcoming Interview Styles An employer may become the target of a lawsuit if its investigators are overly aggressive when interviewing employees about alleged misconduct.  Aggressive tactics may result in legal claims such as false imprisonment and coerced confessions, just to name a few.  More practically, the employer risks not getting the whole story, dissuading employees from cooperating in the investigation, and not reaching the correct conclusion in the matter.  To avoid aggressive interviewing, you should consider appropriate locations to conduct the interviews, outline questions in advance, and use open-ended questions when able, to get the entire story.  As noted above, the “right” investigator can and often does make a big difference in making witnesses feel comfortable so that they will be cooperative instead of obstructing the investigation. 8.  Making Confidentiality Promises Although it is reasonable for an employer to encourage everyone involved in the investigation to keep the matter private, an employer should never promise an employee that his or her complaint will remain confidential.  There will always be certain information that must be disclosed in order for a thorough investigation to be completed.  Moreover, depending again on the nature of the allegations, employers run the risk of a possible violation of federal labor law (considering the NLRB's Banner Health decision) if they demand absolute confidentiality by the witnesses. 9.  Failing to Create a Report Don’t underestimate the value of documenting investigations and credibility determinations to help support the company’s action or inaction regarding the allegations.  Not appropriately documenting necessary evidence, information provided during interviews, and any other relevant findings is just as bad as failing to conduct an investigation.  “The dog ate my homework” does not work very well in the legal arena.  When there is no record of the information obtained to support your determination, there is no way to show that a proper investigation was done and that an appropriate determination was reached.  An investigatory report should be prepared for every single investigation and should include a summary of the matter, the identity of the complainant, the accused, and all witnesses, a description of the relevant documents, findings, credibility determinations, and the recommended action. 10.  Failing to Make a Determination Failing to reach a conclusion and take the necessary steps to stop misconduct and prevent it from occurring in the future will ultimately result in the employer once again exposing itself to legal liability.  Once the report has been completed, a determination should be made regarding whether the misconduct occurred and what appropriate actions should be taken.  Make sure, especially in cases of harassment, that the complainant does not suffer any adverse employment actions resulting from the determination unless you can prove that the allegations were made in bad faith.  When a determination is made, you should consider not only if the chosen action appropriately corrects the problem, but whether it also sends a message to coworkers of what the consequences are for harassing behavior or misconduct. Following these basic common sense steps should go a long way in helping you ensure your employer avoids unnecessary liability.