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
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
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
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.