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Here is how HR can help prevent the missteps that could cost your company big in court.
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Your workplace investigations may be in need of a tuneup.
Imagine you’re in the middle of your workday, driving from one assignment to the next, when your BlackBerry starts registering numerous calls from your employer. A high-ranking official from your employer’s headquarters tells you that a video of you making inappropriate comments has gone viral and says you need to resign immediately to prevent further embarrassment.
You protest, explaining that the video was taken out of context and that your comments were completely appropriate, and plead for the opportunity to clear things up. Your employer refuses, instructing you to pull over to the side of the road and submit your resignation via your BlackBerry. Left with little choice, you comply, knowing that the career you’ve built over so many years is likely over.
You may recognize this scenario as the real-life nightmare that played out last summer for former U.S. Department of Agriculture employee Shirley Sherrod. Putting aside the interesting political and social commentary that came out of this story, there’s a valuable lesson here for human resource professionals about the importance of properly investigating allegations of employee misconduct.
As you probably know, it turned out that Sherrod’s comments in the video were indeed taken out of context. By jumping to conclusions without taking time to collect and review all the evidence related to her comments, Department of Agriculture officials created an embarrassing public relations fiasco and lost an experienced employee with a good track record. The department also put itself at risk for a costly legal battle. Under the right circumstances, an employer making a misstep like this could be hit with a wrongful termination lawsuit.
In stark contrast to the Sherrod example, consider how one employer dealt with a recent allegation of employee misconduct in a case handled by our firm. In that situation, a male employee complained to his employer that his female supervisor had made inappropriate sexual advances toward him. After thoroughly exploring the details of the complaint with the employee, the company’s plant manager and human resource manager immediately began investigating the charges.
The first person they met with was the alleged harasser, who denied the allegations. Nonetheless, she was sent home on paid leave and instructed not to contact anyone at the office while the investigation took place. They then interviewed each person identified by the complaining employee as someone who could substantiate the claims, along with all other employees in his department. They followed up with the witnesses and the parties as the investigation developed.
After completing the investigation and consulting with their outside attorney to be sure that they had complied with all legal requirements, the plant manager and human resource manager concluded that the supervisor had acted inappropriately but that there weren’t sufficient grounds to terminate her. They communicated their findings to the complaining employee, informing him that his supervisor would return to work but would be prohibited from meeting with him one-on-one. They warned the supervisor that she would be terminated if she retaliated against the complaining employee, and they encouraged him to report any such incidents of retaliation. They followed up with the complaining employee and others to be sure no retaliation was taking place. Finally, they required the alleged harasser to participate in a supervisor training session and organized sexual harassment training for all employees.
As much as the Sherrod situation serves as a glaring example of what not to do when faced with allegations of improper conduct by an employee, our client’s timely and thorough response to the employee’s claims exemplifies a model workplace investigation. This response ultimately allowed the company to avoid a $250,000 punitive damages award at trial.
With these two examples in mind, the following are some best practices for conducting workplace investigations. Sometimes investigations boil down to a credibility determination.
You should almost always investigate an allegation of workplace misconduct. Exceptions might be when the allegations are very minor, such as an innocuous joke not targeted at any particular individual or when the accused admits to the conduct right away. In the latter case, it is appropriate to skip right to taking suitable disciplinary action.
Keep in mind that the obligation to investigate arises whenever you learn about a claim of wrongdoing. This includes formal and informal complaints, information obtained during exit interviews, anonymous tips, rumors, third-party information and other means that bring the matter to your attention.
Take careful notes and document objective facts, as opposed to conclusions or opinions.
Begin your investigation as soon as possible after learning of the complaint. Proceed diligently and attempt to complete the investigation within a reasonable amount of time under the circumstances. Investigations commenced within a day or two of the complaint and completed within two weeks have routinely been upheld by courts as timely.
Choose the Proper Investigator
The hallmarks of the right investigator are experience, neutrality and objectivity. Obviously, someone who has a vested interest in the outcome of the investigation is a poor choice. Thus, the alleged wrongdoer should have no supervisory authority over the investigator and no direct or indirect control over the investigation.
Neither the complaining employee nor the alleged wrongdoer should be a direct subordinate of the investigator. If the accused is a high-ranking employee, you may consider bringing in an attorney or another outside investigator to conduct the investigation. Regardless, be sure that the investigator conducts the investigation impartially, with no preconceived notions as to who was at fault, and that he or she treats all parties involved—the complainant, alleged wrongdoer and all witnesses—fairly and with respect.
Start by meeting with the complaining employee and getting as much detail as possible. From there, thoroughly interview the alleged wrongdoer and all witnesses identified by the complainant and the alleged wrongdoer, possibly both of their supervisors, and other witnesses identified during the investigation.
Obtain relevant documentation from everyone involved. Take careful notes and document objective facts, as opposed to conclusions or opinions.
Have the people you interview sign written statements, or at least sign off on your notes, so there’s no dispute later as to what they told you. Don’t hesitate to re-interview witnesses if new information or issues come up, as they likely will.
Take reasonable steps to maintain the confidentiality of the complaint, the complainant, the witnesses, and the documents and records related to the investigation. Only disclose information to people on a “need to know” basis.
The investigator should advise witnesses, including the complaining employee and the alleged wrongdoer, to keep information related to the investigation confidential. You may even want to have them sign an agreement to that effect. However, never guarantee the confidentiality of the process to anyone, as you never know what may come of the investigation down the road.
As was the case with our firm’s client and in the Sherrod situation—although in different contexts—the investigator often will be faced with a “he said/she said” dilemma: The accused wrongdoer completely denies the allegations. Moreover, various witnesses may provide differing accounts of the facts, requiring the investigator to assess the parties’ and witnesses’ credibility. This is perhaps the most challenging task in any workplace investigation.
Factors to consider when assessing witness credibility include:
Demeanor.How did the witness present the facts? How did he or she react to questions? What was his or her body language like? What was your overall impression of the witness?
Consistency.How consistent was the witness’ story compared to others? Has his or her story changed during the investigation?
Chronology. How does this witness’s timing of events compare with the timing recounted by others? How does it compare to the other physical evidence, such as e-mails, letters, voice mails and expense reports?
Corroboration. Are there documents, other witnesses or other evidence that supports the witness’ story?
Plausibility.Is the witness’s version of the facts inherently plausible? In light of your range of life experiences, does the story make sense?
Most importantly, the investigation must not grind to a halt because of a ‘he said/she said’ situation.
History and motivation.Does the witness have any motivation to fabricate his or her statement? Is he or she biased or impartial? Was there bad blood between the witness and the accused or the complainant? Does the alleged wrongdoer have a past record of inappropriate conduct?
Most importantly, the investigation must not grind to a halt because of a “he said/she said” situation. Instead, an experienced investigator must evaluate the witnesses’ statements in light of these factors and make a judgment as to whether the events happened as described.
Come to a Conclusion
After you gather the evidence, review the relevant information and make credibility determinations, you must come to a conclusion as to whether improper conduct occurred based on a “preponderance of the evidence” standard. Explain your methods, conclusions and any recommendations for appropriate remedial action in a confidential written report.
If you conclude that improper conduct did indeed occur, you must then decide on appropriate disciplinary or remedial action. This is typically handled by a decision-maker other than the investigator. The nature of the punishment will depend on the facts and circumstances, but the punishment may include counseling, training, warnings, suspensions, demotion, transfer, probation or termination. The punishment should fit the crime, end the improper conduct and be consistent with previously imposed discipline for similar conduct by other employees.
Stay in touch with both parties throughout the investigation. Let them know when you’ve completed the investigation and what your findings are. Due to privacy concerns, you may not want to reveal the specific disciplinary action taken, but let the complaining employee know if some action has been taken. Encourage the complainant to report any further instances of misconduct, and follow up regularly to make sure the misconduct has indeed stopped.
This last point may be one of the most important: Employees who raise complaints of misconduct in the workplace often find that they’re treated differently afterward, either by the alleged wrongdoer or by others. Don’t let this happen. Remind everyone involved that retaliation against any party or witness is prohibited, and follow up in the next six months to a year to ensure that no retaliation is taking place.
These tips are guidelines; the specific course of action you undertake in any investigation may vary depending on the facts and circumstances. However, there’s no question that a proper, timely investigation and response to misconduct can minimize the risks and costs of employee litigation.
An improperly conducted investigation, on the other hand, can be costly in terms of litigation costs and the loss of profits that the disruption to business may cause to your organization. Finally, as the Sherrod example demonstrates, it could also cause lasting public embarrassment and result in irreparable damage to your company’s reputation.
The author is a partner in the Phoenix office of the national law firm Ford & Harrison LLP.
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