United States: San Diego Attorney Reviews Top Considerations For Workplace Investigations

Last Updated: March 15 2019
Article by Sharlene Koonce

What should you do when an employee files a sexual harassment complaint against a coworker or supervisor? Or when you receive an anonymous tip on the employee reporting hotline? Or you witness an employee inappropriately touching another employee in the workplace? The answer is simple: Investigate! Investigate! Investigate!

Investigations into workplace harassment complaints, while seemingly daunting, are crucial to effective management. The value of a proper harassment investigation cannot be overstated. A proper investigation shows immediate and appropriate action by the company. It also allows you to engage with employees through direct communication, allowing them to feel heard and validated. A solid investigation also documents facts and findings that could support disciplinary action or defend the company against litigation, if needed. Most of all, a good investigation sends a message to employees that they matter to the company and are protected through your open-door policy and that you will provide prompt and thorough responses to complaints about workplace harassment.

But how does one conduct a proper workplace investigation into harassment claims? The whole idea seems idealistic given the realities of most work environments. The good news is investigating harassment claims is not a one-size-fits-all approach. To the contrary, all good investigators are adapters at heart. And all good investigators always consider these five items when conducting investigations of workplace harassment.

  1. Triage the Situation and Provide Interim Protection to the Alleged Victim

You wouldn’t dare enter a hostile situation without first assessing what you are dealing with and who you needed to save first, would you? No good investigator would. Harassment complaints often involve emotionally charged parties who may not always think or act appropriately amid confrontation and chaos. You must assess, on the spot, if there is any risk of immediate danger to an employee or harm to property or the environment.

If no immediate harm exists, you should next consider the interim safety of the alleged victim. Practically speaking, this may involve an array of options, such as separating the accused and the alleged victim to avoid any continued harassment or retaliation. It may also include changing work schedules for both the accused and alleged victim. It can involve transferring one of the parties to a different working environment. It may even involve permitting leaves of absences or suspending certain employees with pay while an investigation takes place. Keep in mind that an alleged victim should never be involuntarily transferred or otherwise burdened, as such actions could result in a retaliation claim. If an alleged victim agrees to a transfer, be sure to document that the details of the transfer were explained to the alleged victim and obtain their written consent. The bottom line: Assess the situation and protect the alleged victim before delving into other considerations.

  1. Ensure Confidentiality

Every good employer knows that it must protect the confidentiality of employee complaints to the best of its ability. This, however, should not impede an employer’s duty to conduct a prompt and effective investigation. In many states, such as California, employers have an affirmative duty to investigate. You should never promise absolute confidentiality to any party involved in the investigation. What you should do is explain to all individuals involved in the investigation that all information gathered will remain confidential to the extent possible. You should also explain that some information may be revealed to the accused or potential witnesses if it is necessary to conduct an effective investigation. In sum and substance, never promise confidentiality, but do your best to maintain it.

  1. Select the Right Investigator

All too often, employees volunteer only part of the story when it comes to complaints of harassment. This halfhearted offer of information, which is unfortunately common in harassment cases, warrants the need for a skilled investigator if you hope to obtain all the necessary information. There are a wide range of personnel capable of conducting effective workplace investigations, such as human resources professionals, legal counsel (either within or outside the organization) or non-lawyer third-party investigators.

Each type of investigator presents distinct pros and cons and selecting one or the other will depend on the organization, the complaint and the parties involved. For example, employers often assign HR professionals to investigate complaints of harassment because of their specialized job training, investigation experience and interpersonal skills. Yet the drawback to using HR professionals is that they may lack neutrality, given their day-to-day involvement with company employees. This drawback often influences employers to seek the help of objective outside investigators, especially when a harassment complaint involves executives, managers or other HR personnel. Employers seek assistance from a third-party investigator if they lack the resources to provide an internal investigator.

In some cases, employers will hire legal counsel to handle an investigation involving workplace harassment. It is important to consider the ethical obligations that bind attorneys and the implications of the attorney-client privilege. For example, attorney investigators must disclose to the parties involved in the investigation the purpose of the investigation and the existence of the attorney-employer relationship. Attorney investigators who represent the organization should clearly disclose that the company is their client, not the accused. Attorney-client communications also play a vital role in the investigation process, as those communications are shielded from discovery should litigation ensue.

Regardless of the type of investigator used, an effective investigator is one that can investigate the matter objectively and without bias. They have no personal stake in the outcome of the investigation and no personal relationships with any of the parties involved. It is also imperative the investigator possess interpersonal skills, investigative skills, understanding of the fundamentals of employment and the right temperament to conduct witness interviews.

  1. Develop an Investigation Plan and Interview the Right People at the Right Time

An investigation must be planned in advance if it is to be effective and properly executed. A complete plan should include an outline of all of the issues raised in the complaint; the development of an initial witness list; sources for information, documents, and other evidence; a list of interview questions targeted to elicit crucial information and details; and a process for retention of documentation (for example, preservation of interview notes and emails that could be treated as evidence).

Once the appropriate investigator has been selected, an investigation plan has been developed, and interview questions have been created, the investigator should conduct interviews — right away. It is important to interview the right people at the right time. This means strategizing the order of your witness interviews and not waiting too long before interviewing key witnesses, as memory fades.

One of the main reasons to interview a witness is to obtain information. The interpersonal skills and emotional intelligence of your chosen investigator will play a huge role in what information you obtain, how much information you obtain and whether you get all the details. Witnesses open up to and share information with people they feel most comfortable with. A strong investigator knows how to set up the interview environment and develop a rapport with a witness to get them to talk. In addition, witness interviews allow investigators to determine credibility. Witness interviews can lead to differing accounts and, in some instances, conflicting stories. A good investigator will note these inconsistencies and report them back to you.

  1. Document Everything!

Speaking of reporting back, the most important rule in conducting any investigation, especially investigations of harassment, is keeping a thorough record of everything — everything! Every employer investigating these types of claims should keep a clear paper trail of all of the evidence, including employee files, records of complaints, records of the investigation and findings, records of each step taken during the investigation process, records of the company’s conclusions based on the investigator’s findings or final report, records of witness interviews and any other information relevant to the investigation.

A key document in investigations is often termed as a “final report.” The purpose of a written final report is to document evidence of an immediate and appropriate response by the employer. The final report also accurately documents the investigation, shows that one was in fact conducted and defends the outcome of the investigation. The final report provides decision-makers with the facts and analysis necessary to decide what further action should be taken.

Workplace investigations can be frustrating and tense, but they are a necessary evil when confronting harassment complaints. It is important to remember these five considerations in order to facilitate an effective investigation and ultimately resolve the issue, while also shielding your company from potential liability.

Originally published in Workspan

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Practice Guides
by Mondaq Advice Centers
Relevancy Powered by MondaqAI
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions