You are up against a deadline.  You have invoices due to be paid and payroll to process.  The last thing you want to do is mediate a dispute between your employees.  However, just as you are about to hit send on that last report, you get a knock at your door.  An employee wants to talk to you.  She feels harassed by a co-worker.  Is this matter serious enough that you need to intervene, or do you just tell your employees to play nicely with each other on the playground?

When an employee makes a complaint of any kind, the employer should take immediate steps to stop the conflict.  Even if its relatively minor, office drama in of itself could spread as a Cancer in your office and productivity will cease.

Even further, there are some complaints in which the law requires you to step in, do an investigation, and protect those involved, such as claims of sexual harassment, discrimination, retaliation and/or under the Fair Employment and Housing Act (“FEHA”), Title VII of the Civil Rights Act, Americans with Disabilities Act (“ADA”), California Labor Code, and OSHA.  Employers are required to investigate these types of complaints in a timely manner and issue any appropriate corrective action to ensure that the illegal conduct ceases immediately.

Employers should realize that every single complaint has the potential to become a lawsuit, and potentially a lawsuit that could cost tens of thousands, and even millions of dollars depending on the circumstances. For this reason, conducting a full, neutral investigation and taking necessary steps to protect employees from being victimized by illegal behavior may save you from having to shut down operations over one employee lawsuit.

So, what should you do? Here are some basic steps you should take when an employee makes a complaint:

  1. Take Steps to Provide as Much Confidentiality as Possible 

Confidentiality should be assured and protected to the greatest extent possible.  However, sometimes it’s not always possible.  Never tell an employee that their comments will be absolutely protected.  Simply tell the employee that the information will remain confidential to the extent possible for a thorough investigation, but that some information will have to be told the accused and potential witnesses on a “need to know” basis. They should also be informed that the accused will be instructed not to retaliate against them.

  • Protection the Accuser, not the Accused

Employers have a legal duty to protect the accuser, not the accused, in a workplace investigation.  This flies in the face of what most people understand of the justice system.  Isn’t everyone innocent until proven guilty?  In the criminal justice system-absolutely.  But your workplace investigation is not going to directly result in a criminal conviction.  You have a duty to protect the employee and to conduct a fair investigation.  You can not do so if the accused has access to intimidate witnesses and generally thwart the investigation process.

It’s generally advisable to separate the alleged victim from the accused to guard against continued harassment or retaliation. If a schedule change, transfer, or leave of absence is necessary, do so against the accused and not the alleged victim. Its best to put the accused on paid administrative leave during the investigation and instruct them not to speak to anyone.

  • The Investigator

The best investigators have no stake in the outcome of the investigation.  They should not have a personal relationship with any of the involved parties. Employers often use their internal HR representatives.  This is permissible, if there are no conflicts.  Even without a conflict, internal HR investigations are often scrutinized.  HR representatives are still representatives of the company and could be biased.  The safest best is to hire legal counsel and/or a third-party investigator.  Even if you ultimately decide to go with a third-party investigation firm, make sure to speak to legal counsel to make sure you are in total compliance.

  • Investigation Plan

In order to properly investigate a complaint, it’s advisable to outline of the issue, develop the witness list, list of documents and evidence, and develop interview questions.  For advice and counsel on how to accomplish this, please seek legal counsel.

  • Conduct Interviews

Now you have your plan and it’s time to get to work!  The investigator should inform all parties involved of the need for an investigation and confidentiality. She should then explain the investigation process.

            An investigator should always remain impartial. She should never offer an opinion of the evidence or discredit any of the parties or witnesses.  A great investigator will take copious notes, look for opportunities for more evidence, and name potential witnesses that have not yet been identified.  The better documented and complete the investigation, the less likely the company will be sued or will be liable for substantial damages to a claim.

  • Decision-Making Time

Once the interviews are conducted and the evidence is collected, the investigator must piece together the pieces of the puzzle in order to make recommendation on how to proceed. The investigator will look at the evidence and determine which pieces are contradictory and what testimony was found to be the most credible.  The investigator, management, and legal counsel should make the final determination of actions taken against any employees as a result of the investigator’s report.

  • Closure

Upon deciding how the company will act as a result of the investigation, the employer should notify the parties of the outcome. Let the complainant know that the company took the complaint seriously and took appropriate action. If the company did not find enough evidence to support the claim-state as such.  Do not accuse the complainant of lying.

A proper investigation can make or break a company’s bottom line, so be sure to take employee complaints seriously.  Contact us for more information.

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