10 Key Points Regarding Workplace Investigationsby Michelle Bomberger | June 27, 2018
Clients often ask us should we investigate a complaint filed by an employee even if it has no validity and, if so, how should we do it. In today’s environment of increased scrutiny of sexual harassment, race, gender discrimination and other claims, every complaint should be addressed and potentially investigated. Here’s a quick summary of 10 key points regarding workplace investigations.
- All businesses should have a detailed plan in place to respond to and investigate complaints. The plan should include the following:
- who will investigate
- how will the investigation be conducted
- how will evidence be protected from destruction, gathered reviewed and retained
- how the information gathered during the investigation may be used to discipline employees and/or protect employee rights
- how the investigation findings will be presented
- Chain of command for the investigation should be established at the outset to avoid potential conflicts and to manage expectations.
- All complaints should be investigated even when validity may be disputed. Depending on the allegations there may not need to be a full-blown investigation but no complaint should be ignored.
- From the outset the investigator should establish the scope and plan for the investigation so that the complainant and company know what to expect. Investigations should have a rough timeline in order to give employees and the business an idea of how the process will proceed and when decisions will be made.
- An outside investigator is generally preferred to reduce the appearance of bias and to establish client-attorney privilege on behalf of the company. Also, depending on the issues, the investigator may need to have a particular area of expertise.
- The investigator should have enough experience to effectively evaluate evidence witnesses including their credibility and how successful they may be if they testify before a jury.
- Depending on the complexity of your business, you may need to develop a group of advisors to assist the investigation including lawyers, Human Resources professionals, Information Technology professionals, and other experts.
- Certain complaints may need to be reported to government agencies e.g. data breaches, criminal activity etc.
- Once the investigation is completed, the investigator should advise the complainant on the findings. A written report provides facts and legal conclusions which may be used to not only advise the business but also be provided to regulators if the need arises. In the alternative, an oral report may be used to provide the client and complainant with the findings; however, the complainant may allege that the company is trying to hide the findings or did not do an adequate investigation.
- Finally, once an investigation takes, place follow through and make sure the business takes action if needed.
When a business receives a complaint from an employee it can be a stressful and unpleasant experience. However, with proper planning before the need arises it can be dealt with and proactively which may prevent litigation.