Practice Tips for a Successful Workplace Investigation
Former Uber engineer Susan Fowler Rigetti’s story of sexual harassment and the company’s inadequate response to her multiple complaints, highlight how important it is for a company to have an effective action plan in dealing with these sensitive issues.
The following is some practice pointers on what a company should do (and not do) when it receives an employee complaint of discrimination/harassment or other misconduct by another employee:
Understand the complaint
Before taking action, it’s important to understand what the employee is complaining about. The company must know who is involved, what is alleged to have happened, as well as when, where and, if possible, why it occurred. The company should try to understand what the complainant is seeking without making any promises or assurances regarding how it will resolve the complaint.
Should the company investigate?
Investigations can involve a significant allocation of time and financial resources. Before a company conducts an internal or private outside investigation into a complaint, it should consider whether it is appropriate for an investigation to be undertaken or whether there is a better option for resolving the complaint. Another option would be mediation of an interpersonal disagreement between colleagues.
Review policies and procedures
Many employers have policies and procedures enacted that provide guidance or structure about how a workplace complaint should be handled or an investigation conducted. Therefore, once a complaint is received, the company should review its policies and procedures to ensure it is in compliance.
Appointing an investigator
The decision of whether to appoint an investigator or not should be made on a case-by-case basis. Although, it is less expensive to designate an internal investigator, there are times when a company should hire an outside investigator. The outside investigator is perceived as more neutral and may have greater expertise in conducting investigations and drafting investigation reports. Many companies hire an experienced attorney to serve as an outside investigator. They do this because the attorney is skilled at interviewing witnesses, making credibility assessments and writing effective reports.
Keep the lines of communication open
If the employer undertakes an investigation into the complaint, it should take care to keep the lines of communication open with all of the involved parties. By actively managing expectations, the company can minimize some of the stress that is often associated with an investigation.
Weighing and Assessing the Evidence
Assessing conflicting evidence provided by investigation participants is a daunting task for many investigators. In addition to interviewing witnesses, the interviewer should review emails, file notes and other relevant documents or recordings. To the extent there is conflicting testimony given by witnesses, the investigator should make a credibility assessment in weighing the evidence. Sometimes a finding cannot be made and the investigation should properly be labeled as “inconclusive.”
Once an investigation is concluded, a company should ensure that it promptly communicates the finding of the investigation to the parties involved. Where the investigation findings are likely to result in disciplinary action for an employee, the company will need to ensure that the employee is afforded procedural fairness throughout the disciplinary process. Even when an investigation has been inconclusive, there are still steps that could be taken. An example of this would be trainings on appropriate workplace behavior.
After the investigation is concluded, the company should review its policies, procedures, practices and on-going employee trainings. This is to see whether its overall process in handling these sensitive employee complaints can be improved upon. Alternately this can help decide whether an outside professional can assist with this process.
Rina Traub, of Traub Law in Princeton & East Brunswick, NJ, is an experienced counselor and advocate. She works with New Jersey’s executives, professionals and business owners.
Ms. Traub also counsels businesses on employment matters, including legal compliance, handbooks, and employer/employee relations. For Workplace Investigations, Contact her at (609) 951-2204 for more discussion about Practice Tips for a Successful Workplace Investigation.