Workplace investigations are obviously a subject fraught with potential problems. If an employee comes to you with a complaint, how do you conduct an investigation without placing your organization at risk for costly litigation? Complaints and investigations should be handled delicately yet consistently.
In a BLR webinar titled "Workplace Investigations from Complaint to Closure: A Step-by-Step Guide for HR," Robert A. Kaiser outlined some of the legal considerations employers should bear in mind before even getting started with a workplace investigation.
Legal Considerations of Workplace Investigations
"It’s important for people to recognize that not only are there practical considerations [and] internal considerations for conducting investigations, but in fact some of those obligations have been engrafted into the law." Kaiser explained. There are a number of legal obligations imposed on employers, such as the federal anti-discrimination statutes. While these do not necessarily require you to conduct investigations, how and when you do so will end up being the fodder for underlying discrimination claims. By conducting a workplace investigation when a complaint arises, you are showing your intention of compliance with the law.
The laws around harassment act as a model for any workplace investigation, actually. In general, employers should:
- Have a written policy prohibiting the unwanted behaviors. The policy should outline how to submit a complaint about a violation of the policy.
- Have an obligation to investigate complaints in order to ensure the employer does not foster an environment where harassment occurs.
- Have an obligation to act if problems are found. With respect to harassing conduct practiced by lower level employees, an employer is liable if the employer knows or should have known of the harassing conduct and thereafter fails to take appropriate remedial measures to end the harassment. When the employer sees harassment, however, the employer is required to take action reasonably designed to stop it.
Your legal considerations aren't limited to after a complaint has been brought to your attention. In fact, at the state level, to ensure your employees have a safe workplace, you may have a duty to investigate someone – in the form of a background check – before they're even hired. Kaiser advised that "In some states, they will recognize what’s referred to as a tort or a court-adopted mechanism for suing an employer for negligently hiring or retaining or supervising an employee." If someone alleges harm by an employee, the courts will perform an inquiry to determine whether you were negligent in these activities. For example, if you hire a driver without checking their driving record and the driver causes a major accident, you could be negligent in this situation.
Even with just these quick examples, it’s easy to see why employers should be conscious of their legal obligations when conducting workplace investigations. For more information and tips on conducting workplace investigations, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Robert A. Kaiser is a member of the Employment and Labor practice group at Armstrong Teasdale representing emerging and mature businesses in labor and personnel-related disputes. As counsel to both public and private sector employers, including manufacturing companies, health care providers and governmental entities, Mr. Kaiser advocates in employment matters throughout the country involving discrimination and wrongful discharge.