Expert Provides Guidance on Investigation Dilemmas

HR professionals, supervisors, managers and executives should evaluate every employee complaint carefully—whether it is shared formally, informally, confidentially or via the rumor mill—to minimize the possibility of legal, financial and reputational consequences.

This was one of the suggestions provided by Denise M. Kay, SPHR, president of Employment Practices Solutions, Inc., in Lakewood, Colo., a firm specializing in workplace investigations, during a March 18, 2010, concurrent session of the Society for Human Resource Management (SHRM) Employment Law & Legislative Conference held in Washington D.C.

Employers have to investigate complaints—even when they come from employees who complain about everything—Kay said, because it’s possible the complaint is legitimate. Therefore, the person on the receiving end of such information should assess the severity of the situation, act as if they don’t know the person’s prior history of complaints and assume that there are at least two sides to the story.

What Merits Investigating?

Kay said HR people get in trouble when they are perceived as “picking and choosing” which complaints to act on. She provided a series of questions for employers to use to evaluate whether an investigation is needed, such as:

• Does your policy mandate an investigation?
• How serious is the complaint?
• What are the implications of the complaint?
• Who is complaining; are they part of a protected class?
• Is there, or has there been, more than one related concern?
• Can you see litigation looming on the horizon?

“Courts give us some guidance on what needs to be investigated,” she added, such as allegations of harassment, discrimination, theft, substance abuse, violence, Internet/e-mail usage, insubordination, ethics and financial issues.

She noted, however, that this is not an all-encompassing list.

Kay recommended that employers adopt a system that allows for centralized review of all employee complaints so it’s possible to identify patterns or possible class-action situations and to ensure that complaints are handled in a consistent manner.

And when information comes via the rumor mill, Kay said, it’s important to assume that the rumor might be true but to weigh the credibility of the source and consider how the information was provided.

That doesn’t mean that verbal complaints are less valid than written complaints, or that verbal complaints should be put in writing.

“I do not recommend you get the person to put a complaint in writing before you investigate,” she noted, because that can slow the complaint resolution process.

It’s important to ignore an employee’s pleas not to act on information that has been imparted with the assumption of confidentiality, she noted, because once an employer has been made aware of a possible situation they have an obligation to investigate.

Similarly, even if it is an executive demanding that no action be taken, “you have a duty as an employer to look into it,” Kay said. However, she acknowledged that it might take some persuading to get an executive to realize that it’s better to take action than to ignore a situation that could cause further problems later on. For example, she said it costs an average of $250,000 to get an Equal Employment Opportunity Commission (EEOC) charge dismissed early in the process.

Such a gag order can further complicate an investigation, Kay noted.

“If you compromise the credibility of the investigation by allowing someone to dictate the information you get and include in your investigation findings or your accessibility to witnesses or the time you can spend on the investigation or the money that can be put toward the investigation, all of that threatens to invalidate the entire investigation.”

Who Investigates?

Kay said an employer can choose someone other than HR staff or legal counsel to investigate employee complaints, such as other members of management, including those from an organization’s audit, risk management or ethics function. Outside consultants are an option. However, it’s important for the investigator to know that if the results of an investigation are challenged, the investigator’s qualifications and skills and the investigation process itself will be subject to intense scrutiny.

That’s why, she said, an employer should evaluate a potential investigator’s knowledge of employment law, their familiarity with the organization’s policies and procedures, and their awareness of investigation techniques, as well as the individual’s ability to maintain confidentiality and be discreet, fair, impartial and objective.

Another consideration is whether the investigator will make a good witness if put on the stand—an increasingly common practice, according to Kay. If an investigator is put on trial, he or she is likely to face questions about their education, training, experience and impartiality plus their documentation, the scope of the investigation, the witnesses interviewed, the methodology used and more. Kay said it’s important for investigators to present themselves as experts and to maintain impartiality.

But although an attorney might seem like a logical choice for an investigator, Kay noted that there can be issues with attorney/client privilege that can get in the way of an investigation. It is sometimes better to leave the attorney free to defend the employer and let someone else conduct the investigation.

Whether or not the investigator is a member of the HR staff, Kay said, it’s important for HR to be transparent throughout the investigation, even if information could call HR practices into question. HR professionals have to own up to their mistakes, she said: “Hiding the ball, changing the facts, shredding the documents is only going to hurt you down the road.”

Rebecca R. Hastings, SPHR, is an online editor/manager for SHRM.

Related Article

• Case Closed. Now What? HR Magazine, February 2008
• SHRM Video: EEOC Investigations
• SHRM Video: Corporate Investigations
• SHRM Video: Post-Investigation Communication

Interested in this topic?

Learn more at these SHRM 62nd Annual Conference & Exposition sessions, to be held in late June 2010 in San Diego:

• Taming Workplace Beasts: Innovative Conflict Resolution with Tough Adversaries
• Tough Conversations to Have With Your Employees
• When to Call Your Employment Attorney … And When You Don’t Have To