Employers should conduct timely investigations when they receive complaints concerning safety, harassment, discrimination, retaliation, and ethics since various federal laws either provide employers a defense in lawsuits if they conduct investigations or require employers to conduct investigations. In addition to any investigation, the employer must also take any action necessary to correct and stop the prohibited actions immediately. Investigations should be handled properly in order to achieve a quick resolution and to avoid the potential for future litigation. Here we review some common workplace investigation mistakes to avoid.
- No incident reporting System – Employees must have a way to report issues of harassment, safety violations, and other concerns in the first place. Failure to create a reporting system increases the chances that you will not find out about a problem until it has reached crisis level. Furthermore, without a complaint or reporting system, employers lose the benefit of various defenses in discrimination, harassment and retaliation lawsuits.
- No investigation procedures or guidelines – It’s important to have a procedure in place for an internal investigation before the complaint occurs. This should allow the investigation process to be put in motion quickly and ensure that each investigation is conducted consistently. This will include a system to provide protection for the complainant, a procedure to select the investigation team, and a basic investigation timetable.
- Failure to investigate promptly – Delaying the start of the investigation may allow the situation to escalate and the employer can be held liable for failing to take timely action. Evidence may also become compromised if not collected and preserved. Complaints should be taken seriously and investigated as soon as possible.
- Failure to preserve evidence – The subject of the complaint must not have access to evidence supporting the complainant’s case. As evidence is collected the following information should be noted: how obtained, when collected and by whom, where and how transported, and where stored and maintained.
- Poor documentation practices – The investigation must be thoroughly documented. This will become important, should the complaint result in litigation. A thorough investigation file will include the initial complaint, the accused party’s response, interview notes, meeting details, policy details, evidence (including evidence handling information), the investigator’s detailed notes on the progress of the investigation and any problems encountered, and the investigator’s report.
- Investigation bias – Those selected to conduct the investigation should not have any personal ties to the parties involved that might interfere with their abilities to be impartial. To avoid the appearance of bias, particularly in sensitive cases or cases involving high-level executives, it may be best to seek the services of a neutral third party to perform your workplace investigation.
- Failure to verify information – If the case ends up in court, your evidence must hold up under scrutiny. Be sure your investigation process includes a thorough review of the evidence under a critical eye.
- Incomplete investigation – Talk to everyone involved. One or two interviews oftentimes may not be sufficient.
- Retaliation issues – Maintain a written anti-retaliation policy and review it with everyone involved in the investigation including the complaining party, the accused person, all interviewees, and management. Follow up with the complainant to inquire about any retaliation that may be taking place.
- Poor or no report on findings – A full report of the findings of the investigation should be prepared.
And one more bonus mistake to avoid:
- Conclusions and Company Follow Up – What are the takeaways from this experience for the company? How can investigation procedures and policies be improved? What further company training is necessary?
Consider all of these factors and avoid these critical mistakes when investigating workplace complaints. If you don’t have the time or staff to conduct a thorough or impartial workplace investigation, then it may be best to get help from a neutral third party. The employment law attorneys at Simon | Paschal PLLC conduct thorough workplace investigations and can provide assistance in the event that the matter escalates to the courtroom.
