Knowing when and how to perform an investigation are two critical components for employers to avoid litigation and other problems regarding workplace misconduct, such as harassment.

Employers must conduct an investigation whenever they are put on notice of possible misconduct, and the investigations must be effective and thorough, according to Rebecca Speer, founder of Speer Associates, and Dawn J. Groman Darringer, a partner in the law firm of McDermott Will & Emery LLP, who recently presented the BLR audio conference "Workplace Investigations: Responding to Employee Complaints and Addressing Misconduct."

Speer, who has conducted investigations for a wide variety of companies, said employers must initiate an investigation even if the complaint is informal "venting" by employees, arguing that employers shouldn't wait until they receive a formal complaint to begin an investigation. By then, it could be too late to head off problems.

Darringer agreed that even an informal complaint triggers the employer's responsibility to investigate possible misconduct. Speer added that in general, an investigation should proceed even if the complainant is uncooperative.

Darringer noted that adequate training for supervisors and employees is important for employees to understand the definition of harassment (and other forms of misconduct) and the company's responsibility in responding to complaints.

She said that the employer's response to complaints is an important factor in the complainant's decision of whether to file a lawsuit.

The two experts also offered tips on ensuring that workplace investigations are thorough, a factor that courts examine when evaluating an employer's response to complaints.

Speer said the person who conducts the investigation should be able to act objectively with no stake in the outcome. The person should also be skilled. The investigator should also have the right temperament, including good interpersonal skills to build rapport with the complainant and witnesses. She added that the person should be respected within the organization so his or her conclusions carry weight. This person should follow through on the investigation and avoid cutting it short or forming conclusions before it is complete.

She said that employers may have to use an outside investigator if the organization lacks the requisite skills or time to conduct an investigation or the person accused of misconduct is high up in the organization.

When planning an investigation, the investigator should frame the issue and build the framework of the investigation, including what questions must be answered during the investigation. The investigator should create a prospective witness list, identify additional sources of information and evidence, and decide how he or she will preserve evidence (such as e-mails) and how the investigator will retain notes from interviews with witnesses.

Darringer said that investigators should ensure that their notes from interviews are dated, have as much information to be most helpful to the investigation, and indicate the duration of the interview. Speer added that the notes should be as factual as possible.

When conducting interviews, investigators should set up ground rules, describe the process to interviewees, and explain the need for confidentiality, Speer recommended.

After the investigation is completed, there are several actions that should be taken, according to Darringer. The employer/HR should:

• Make a determination (may be with the advice of counsel).
  
• Inform the parties of the outcome.
  
• Take prompt action to remedy any inappropriate conduct.
  
• Penalize the harasser (the penalty should be adequate for the misconduct)
  
• Remedy any loss of tangible job benefit suffered by the victim.
  
• Consider education

When informing parties of the outcome, it is important to preserve confidentiality but also let the complainant know that the company took the complaint seriously and took appropriate action, according to the two experts.