Employee complaints are made in virtually every workplace, even where the company has developed meaningful workplace policies and trained its employees on compliance. While complaints may be unavoidable, companies that respond appropriately by investigating complaints and taking remedial action, when necessary, can maintain employee morale, protect their reputations and reduce their legal risks. An effective workplace investigation has a number of important components.
It seems obvious: when an employee brings to the employer’s attention a concern that requires an investigation (and not all concerns do), the employer should act quickly. All too often, though, employee complaints languish without any action by the employer. Inattention is bad business and increases risk.
The notion of promptness is more easily defined by what it is not. Simply put, the employer cannot allow weeks or months to pass without commencing an investigation. Courts in New Jersey have looked at the speed with which the investigation was initiated, and while there is no bright-line rule, sooner is always better.
The advantages of a prompt investigation are myriad: (1) It lets employees know that the company takes their concerns seriously and is committed to maintaining a positive working environment; (2) it increases the likelihood of identifying and resolving problems internally; and (3) it demonstrates compliance with legal or other requirements and serves as a legal defense, particularly in harassment cases.
Select the Right Investigator
Choosing the right investigator is critical. To maintain the integrity of the investigation, the investigator should have the requisite qualifications and be impartial, objective and fair. To the extent possible, the investigator should also be perceived by those who participate in the investigation as having those qualities.
A team approach to an investigation, rather than using a single investigator, should be considered. Where a team is used, the roles of each member are determined before the investigation begins. Oftentimes, one investigator serves as the interviewer while the other serves as the note taker.
Other considerations when selecting an investigator include the nature of the complaint, the objectives of the investigation and the size of the company. Utilizing a member of the company’s employee relations or human resources department, with support from in-house counsel, makes sense because they know the company’s policies and governing laws. However, employers should pay attention to the potential investigator’s role and position within the organization to avoid the appearance of bias or partiality. Another appropriate choice is an outside investigator, such as an attorney or consultant, who specializes in employment law.
Diversity is also a valid consideration in selecting an investigator. For example, a female employee who brings a sexual harassment complaint may be more comfortable with, and more inclined to reveal embarrassing or uncomfortable facts, to a female investigator. Similarly, diversity in communication styles and approach or position within the organization may aid the investigation. Regardless, the investigator must be an effective interviewer and communicator in order to gain the trust of the participants.
Determine the Scope and Establish an Investigation Plan
Once the investigator has been selected, the employer should work with him or her to determine the scope of the investigation. A clear understanding of the issues to be investigated helps the investigator to develop a plan and keeps the investigation on track. While the scope may change once the investigation is underway, starting out with a clearly defined scope enables the investigator to conduct a focused investigation aimed at quickly and thoroughly addressing the specific concerns raised. Should other concerns arise during the investigation, which are beyond the original scope, the investigator should notify the employer to determine whether a change in scope is necessary.
With the scope of the investigation established, the investigator should develop an investigation plan. The plan should include who will be interviewed and the order of interviews, where the interviews will take place, and what documents or other evidence should be collected.
In some instances, interim measures are necessary and the company should determine this as early as possible. Of course, the company should avoid a rush to judgment and any action that could be perceived as penalizing the alleged victim or hastily imposing disciplinary measures on the accused.
Collect Documents and Conduct Interviews
One of the essential, preliminary steps in an investigation is the document collection and review process, which should start as soon as practicable. Deciding what documents to gather depends on the nature of the allegations and may include documents provided by (or referenced by) the complainant, written policies and procedures or codes of ethics, personnel files, prior relevant complaints and investigation files, organizational charts, supervisor files, emails, texts and voice mail messages, and possibly even information gleaned from social media websites.
Witness interviews are an essential component of the investigation. Some guidelines for the investigator when conducting interviews include the following.
• Prepare a basic outline of interview questions to ensure a focused interview, but remain flexible.
• Begin with an opening statement that includes the purpose of the interview, the importance of confidentiality and an explanation of the anti-retaliation policy.
• Do not let the interviewee’s discomfort with the questions posed interfere with the need to gather the information necessary to fairly and accurately understand the issues.
• Ask open-ended questions and let the witness tell the story. The investigator is a neutral observer, not an active participant.
• Only disclose information to a witness that the witness needs to know in order to answer questions.
• If the witness introduces additional issues, be sure to explore them.
• Explain that while every effort will be made to maintain confidentiality, it cannot be guaranteed.
Maintain Proper Documentation of the Investigation
The investigator must carefully document each step of the investigation, including dates, times, locations, persons present and topics discussed. Although this is by no means a certain result, the investigator should assume that all documents gathered and written during the investigation will be discoverable in a future litigation.
Witness interviews should be documented through the investigator’s handwritten notes, an audio recording or a written transcript. Be mindful, however, that the latter two methods could have a chilling effect on the witness’ willingness to provide information.
If the investigator elects to take handwritten notes, confirming the accuracy of the notes with the witness is advisable. The investigator may read her notes to the witness and secure the witness’ approval, which is also documented in the notes, or provide the witness with a memorandum for the witness’ review and signature. The investigator’s notes should contain facts gathered from the witness, not the investigator’s perceptions, opinions, assumptions or conclusions. If a potential witness was not interviewed, the investigator should documents the reasons.
Opinions differ as to whether the complainant should be required to sign a written statement of her complaint. The formality of such a requirement could make the complainant feel uncomfortable and deter some complainants from coming forward. Conversely, if the facts are complicated, a signed statement can serve as a "stake in the ground" to keep the investigation on track.
Conclude the Investigation and Prepare the Investigation Report
Before the investigation is concluded, the investigator should review the investigation plan to ensure that all tasks were completed and that adequate information was collected. This review will determine whether additional action is necessary, such as re-interviewing witnesses.
A written report is an effective means of organizing the evidence gathered during the investigation and should:
Describe the complaint;
Describe the investigation process;
List the documents reviewed and the witnesses interviewed, with dates and times;
Identify the relevant policies;
Summarize the facts gathered during the investigation;
Attach documents that the investigator found relevant or relied upon; and
Reach conclusions that are supported by the evidence.
In reaching their conclusions, many investigators consider the timeliness of the complaint, the trustworthiness and credibility of the witnesses, whether there is a pattern of misbehavior on the part of the accused, and the complainant’s possible motivation for the complaint, such as to draw attention away from poor performance. The investigative report should not include recommendations for corrective action, as this decision is within the purview of the employer. Dissemination of the report should be limited to only those individuals responsible for determining the company’s course of action.
Timely Remedial Action and Follow Up
The employer must act upon the results of the investigation. When the investigation substantiates the complaint, prompt and effective corrective action should be taken. Uniform and consistent application of the employer’s policies is important — similar violations should result in similar discipline. The reason for any deviation should be documented.
Even an unsubstantiated complaint could reveal something about the work environment that requires attention by the employer. For example, the investigation may reveal that the accused would benefit from training to improve his/her management or communication style or that the complainant needs more feedback concerning her performance.
Regardless of the outcome, the employer should follow up with the complainant after the investigation has concluded. Monitoring the work environment may be necessary, particularly where the complainant and accused continue to work together. All investigation participants should be reminded that retaliation is prohibited. •