It seems over the last 12 to 24 months that employee complaints of “whatever” have increased. Our client case volume has greatly increased regarding internal complaints requiring internal investigations conducted by company staff and/or SESCO.
Even if the employer feels as if the complaint is frivolous or not that serious, employers are legally obligated to investigate complaints of harassment, discrimination, retaliation, safety and ethics in a timely manner. In addition, in appropriate corrective action is required to be taken by the employer to ensure that illegal actions/behaviors cease immediately.
Responsiveness to a complaint and an investigation will not only yield necessary information and evidence, but it will also enhance the employer’s credibility. You simply cannot ignore any type of complaint frankly whether it is of an illegal nature or not. The investigation process will help identify and resolve internal issues before they become wide spread. Since every complaint has a potential to become a lawsuit, employers must investigate every case in a manner in which it can be presented to a court of law.
Based on SESCO’s long history of conducting successful investigations on behalf of employers as well as representing employers before the EEOC, we suggest the following:
Step 1: Ensure Confidentiality
The employer must protect the confidentiality of employee claims to the best of its ability. At the same time, the employer has to conduct a prompt and effective investigation therefore it is reasonable to tell the complainant that you will hold the investigation in confidence to the best of your ability and that information will be shared internally only on a “need to know” basis.
Step 2: Provide Interim Protection
One of the first considerations may be the need to ensure the protection of the complainant. It may be necessary to separate the alleged victim from the accused or even, based on the complaint, suspend with or without pay the accused until the investigation is complete. Also, the accused should also be placed on notice that no matter what, there should never be any type of continued harassment or retaliation during or after the investigation.
Step 3: Select the Investigator
The investigator should possess the following:
- An ability to investigate objectively
- To have no stake in the outcome
- The skills to conduct such an investigation
- Strong interpersonal skills as well as credibility with the complainant
- Have attention to detail
- Be in a position to maintain confidentiality
Due to the significant liability as well as the potential internal rumor mill and explosive nature of investigations, employers generally use the resources of a firm like SESCO. There are distinct advantages to doing such.
Step 4: Create a Plan for the Investigation
This plan should include an outline of the issue, the development of a witness list, sources for information and evidence, interview questions, and a process for retaining documentation such as social media, interview notes, emails, texts, etc.
Step 5: Conduct Interviews
The first interview should be with the complainant. Be very specific in asking, in essence, “what” happened, who witnessed it or heard it, dates, and other facts. Be careful in the conversation to not infer you do not believe the individual. Many times, we will use recording devices. Regardless, reduce the interview to writing and have the complainant sign and date it. Many times, we will also have the complainant reduce the complaint to writing prior to the first interview so that questions can be asked from there.
Next, go to the accused, explain the concern and get his or her response. Include the recording device and/or the documentation as in the first interview. Remind the accused or the zero-retaliation expectation.
Interview witnesses that were identified by the complainant or the alleged abuser and maintain the same documentation.
In addition to the investigative notes, develop a detailed, written summary of the investigation’s results. Who was interviewed, dates and times, and perspective on the investigation? This will include recommended employer actions.
Step 7: Conclusion
Once the investigation has been completed and the actions have been confirmed, let the complainant know that the investigation has been completed and that you are taking appropriate action. Please know that the complainant does not need to know what action is being taken. Also, know that the complainant many times will expect a termination or other results such as a severance payment or other potentially inappropriate requests. At this stage, the employer is only required to take what they feel is appropriate action based on a commonsense standard and to do so timely. As necessary, circle back with the accused and as appropriate take action which may include an apology, a verbal warning, a written warning, or termination, especially if this is not the first complaint or if there are other behaviors coupled with this complaint that deserve such disciplinary action.
The goal of this whole process is to ensure that if a court, jury, or government agency were to investigate the complaint on behalf of the complainant, they would conclude that the employer took the situation seriously, responded immediately and appropriately, and had documented good-faith basis for any action (or no actions) taken during or as the result of the investigation. Regardless if SESCO is involved in the investigation or not, it is always good for clients to be counseled by SESCO through this process given the legality and potential cost of conducting a poor investigation internally.