by Frank J. Godfrey III
When issues involving the behavior of individual employees or interactions between employees crop up, a workplace investigation may be in order. Examples of incidents or patterns of behavior that should spur an investigation include discrimination or harassment complaints, safety problems or work rule violations, criminal activity such as theft or threatening behavior, among others.
Workplace investigations are important but complicated matters. A well-planned and documented workplace investigation is an effective tool that can limit a company’s liability exposure to employment related claims. Unfortunately, a poorly planned and executed workplace investigation can have the opposite effect and expose a company to liability.
A fairly recent employment case illustrates this issue. A former employee sued IBM for age discrimination in 2014. The former employee complained to IBM’s human resource manager about discriminatory practices based on his age. IBM’s workplace policies required employees to report discriminatory practices to human resources. Human resources investigated the employee’s complaint and concluded no evidence existed of discriminatory practices. IBM attempted to admit the human resource manager’s report of the workplace investigation into evidence.
The judge refused to admit the report and leveled harsh criticism at IBM regarding how it handled the investigation and documented its findings. The judge noted the investigation report was biased and one-sided. He concluded IBM failed to address and include any evidence favorable to the complaining employee. The judge stated the investigation and report lacked evidence that the complaining employee was treated fairly, and that it appeared it was intended to exonerate IBM rather than to seriously address the employee’s complaints, which was required by IBM’s own anti-discrimination policy.
The former employee was awarded $1.4 million. The workplace investigation and resulting report should have acted as a shield to protect IBM from the former employee’s allegations and claims. Instead, and as a result of its own poor practices, IBM’s workplace investigation and report became a sword used against it at trial and final judgment.
With these matters in mind, employers should consider the following when conducting workplace investigations. Investigations should be taken seriously. The investigation should be conducted promptly. Employers should be thorough when conducting workplace investigations. The investigative process should be fair and the conclusion of the investigation should be objective. A report that reflects these goals will go a long way in shielding employers from liability exposure. Moreover, workplace investigations conducted in this manner help maintain employee morale and trust.
Investigating employee complaints can be challenging, complicated and stressful. When concerns arise, it is best to contact legal counsel for advice. However, employers should, at a minimum, keep the following best practices in mind when planning to conduct a workplace investigation:
Before launching an investigation, determine:
- The purpose of the investigation
- Who will manage and conduct the investigation
- A plan for the investigation process
- All matters that will be investigated
- Evidence to address regarding specifics of the employee complaint
- Witnesses who will be questioned
- If you need assistance from legal counsel or a private investigator
- Conclusions objectively and based on facts
In contrast, employers should avoid at all costs a failure to:
- Take an employee’s complaints seriously
- Adequately plan a fair investigation
- Obtain assistance from legal counsel or private investigator when the situation warrants it
- Maintain objectivity and fair processes during the investigation
- Reach a conclusion that is based on facts
- Reach a conclusion at all
- Document the results of the investigation
Another important but often overlooked consideration is maintaining confidentiality. Employers should do their best to maintain confidentiality when investigating employee complaints. However, it is sometimes necessary to discuss matters with other employees or people outside of the company. For example, a serious complaint may necessitate involvement with local law enforcement or the employer’s insurance carrier. This should be discussed and explained to the complaining employee and witnesses who are interviewed. Employers should simply state they will do their best to maintain confidentiality and share information on a need-to-know basis. However, be sure to make clear there can be no guarantee of confidentiality.
Fairly conducted workplace investigations are essential for effective limitation of liability exposure. Following the practices outlined above will help employers conduct productive and fair investigations that can be used to protect their interests should future disputes arise. Another benefit to conducting investigations in this manner is that it will help employers determine which policies and practices are working, and which need to be revised. It will also help identify areas that require additional training. This presents an opportunity to recast a complicated, workplace challenge into a positive experience and result for employers.