In recent years, employers have encountered evolving federal and state requirements related to discrimination, harassment, and retaliation in the workplace. These developments arise from changes in agency guidance, such as the EEOC’s revised stance on sexual harassment, new legislation expanding protected classes, and shifting judicial standards that lower the threshold for proving harm in employment discrimination cases.
A critical component of any effective response to a complaint is a properly conducted workplace investigation. Investigations serve to gather relevant facts from the complainant, the accused, and any witnesses, and to review documentation and other evidence so that employers can take appropriate corrective action when necessary.
Key Considerations for Workplace Investigations
- Tailor the investigation to the situation: There is no one-size-fits-all approach. The scope and formality of an investigation should reflect the seriousness of the complaint. While some cases may call for formal interviews or external counsel, others may be addressed with a more streamlined approach. At a minimum, investigations should include interviews with both the complainant and the alleged wrongdoer and should be thoroughly documented.
- Investigate informal complaints: Employers should not wait for a formal, written complaint. An investigation should be initiated when an employee makes a verbal or informal report suggesting a potential policy or legal violation.
- Consider external investigators when appropriate: While internal HR personnel often conduct investigations, the use of external, impartial investigators may be preferable in certain scenarios, such as serious allegations, potential litigation, or when termination of employment may be a potential outcome.
- Remote interviews are acceptable: Interviews may be conducted in person or via video conferencing, especially when logistics or costs make in-person meetings impractical. Video interviews are generally preferred over phone calls for better assessment of witness credibility. Oral interviews, supported by thorough documentation, may be more effective than requiring written witness statements.
- Preserve evidence early: Depending on the nature of the allegations and the likelihood of litigation, employers should consider issuing evidence preservation notices to relevant parties. These can be formal written letters or informal verbal instructions, reminding individuals not to delete potentially relevant records or communications.
- Communicate investigation outcomes thoughtfully: While confidentiality is important, employers should generally inform both the complainant and the alleged wrongdoer of the outcome, i.e., whether a policy violation was substantiated. Details of disciplinary action, however, need not be disclosed. Employers should also take steps to prevent retaliation and consider following up periodically with the complainant to monitor for ongoing issues.
- Invest in training and prevention: Proactive employers are better positioned to manage workplace complaints. Organizations should implement clear reporting procedures and train employees on policies related to harassment, discrimination, and workplace conduct.
By taking a thoughtful and flexible approach to investigations, as well as documenting each step, employers can respond effectively to complaints, reduce legal risk, and foster a respectful workplace environment.
If you have any questions regarding workplace investigations, please feel free to Forework.