by Stuart R. Buttrick, Baker & Daniels
Employers are forced to defend themselves against large numbers of EEOC charges and lawsuits, many of which could be avoided by prompt and effective internal investigations. A primary goal of any human resource or EEO officer should be to have an effective mechanism for allowing work-related complaints to be resolved internally. Having such an internal mechanism can avoid (or at least reduce) the time and cost the employer spends defending itself with outside agencies or perhaps ultimately in litigation. Equally important is the fact that having a mechanism is just good human resource practice. Additionally, it can be a defense for an employer if it does face litigation, and the employee has failed to take advantage of the internal grievance or complaint procedure. This Article will discuss some of the measures that employers should consider when conducting an internal investigation.
A. Have An Effective, Communicated Policy
- An employer's written policy against discrimination and harassment in the workplace is the bedrock of any internal investigation. It is suggested that a discrimination and harassment policy contain these elements:
- A strong statement that the company prohibits and will not tolerate discrimination or harassment in the workplace.
- A statement that the company has an internal complaint procedure which employees should use if they feel they have been discriminated against or harassed.
- A statement that complaints are treated as confidentially as possible.
- A statement that no adverse action will be taken against an employee for using the procedure.
- A statement that the company takes internal complaints seriously and will promptly investigate them.
- A statement that the company will take appropriate action based on the results of the investigation.
The policy must be communicated to employees by providing a copy to each employee periodically, posting it, or including it in an employee handbook. Employees should be required to sign an acknowledgment that they have received and read the policy. The policy also should be covered in new employee orientation.
B. The Fundamental Steps of an Effective Investigation
The same procedure should be used each time a complaint is received. To ensure uniformity, it can be helpful to have your internal investigation procedure in writing. Of course, you should be sure that any written procedure is followed consistently.
- Get the complaint in writing: Ask the employee to place the complaint in writing and sign it. Consider using a standard internal complaint form. This protects both you and the complainant should questions arise later as to the nature and details of the complaint and your investigation. An employer has an affirmative obligation to investigate discrimination or harassment once it has been put on notice of such claims. Thus, it is a mistake not to pursue a complaint even though the employee is unwilling to place it in writing.
- Interview the complaining employee: After you have reviewed the complaint, interview the complainant. Recognize, though, that written complaints usually simply scratch the surface. Allow sufficient, uninterrupted time for the interview. It typically is not a brief process.
- Inform those with a need to know of the complaint: When both the accuser and the accused are non-management employees, generally you should inform the supervisors of both of the pending complaint. Explain the specific allegations and inquire if the supervisor has seen or heard anything that would give credence to them. You should instruct the supervisor to be on alert to observe if any of the alleged conduct is going on or if any type of retaliatory action is taken against the complainant. As with all communications about the complaint, emphasize the confidential nature of the matter and instruct the supervisor not to discuss the matter with anyone else.
- Interview Complainant's witnesses: The most logical place to start generally will be with witnesses identified by the complaining employee. These employees should be contacted and individually interviewed in private.
- Locate any physical evidence: Part of your interview of witnesses should include questions about whether there is any physical evidence that might exist relevant to the internal complaint, such as notes, drawings, photographs, or tape recordings. If the complaint is concerning graffiti, you should have a photograph taken of the graffiti documenting date, time, location, and witnesses to the photographing. If possible, retain the original of any item of evidence, but if the person will not relinquish it, at least make a number of legible photocopies.
- Interview the alleged perpetrator: After completing the investigation of the complainant's allegations and evidence, meet with the accused employee.
- Interview the alleged perpetrator's witnesses: If the alleged perpetrator has identified any witnesses, of course, you will need to interview them.
- Conduct any necessary follow up: After completing your interviews of the complainant, the accuser and any witnesses, you may need to do some follow up interviews.
- Conclude and report the results of the investigation: After you have completed your investigation, you should be in a position to reach a conclusion which will likely be one of the following:
- The alleged perpetrator violated your policy: Determine what type of action should be taken. You should send a letter imposing the discipline and making other appropriate comments, including comments regarding future conduct and monitoring of the situation, to the perpetrator. A letter also should be sent to the complainant stating the results of the investigation and explaining that action has been taken and, if appropriate, what it is. The letter should further state that the company will monitor the situation and the employee should report further problems.
- You can't conclude one way or another whether a violation occurred: You may find you are unable to reach a conclusion one way or the other. Note that a finding of "inconclusive" does not mean you do not believe the complainant. In this case, send a letter to the complainant and alleged perpetrator stating that the results were inconclusive. Also, restate the company's strong policy against discrimination or harassment and its willingness at all times to investigate such claims and take appropriate action in substantiated cases. It also may be appropriate to consider work relocations.
- There was no discrimination or harassment, but the alleged perpetrator did engage in unacceptable conduct: Send the complainant a letter stating that your investigation did not reveal any discrimination or harassment but that the alleged perpetrator's conduct was inappropriate and he/she has been so informed and counseled. Also, send a letter to the alleged perpetrator stating your conclusion and imposing appropriate discipline.
C. Pitfalls in the Process
1. How to handle anonymous tips.
Allegations of discrimination or harassment may be brought to an employer's attention in the form of an anonymous tip. Anonymous tips are easier for employees to make as more employers provide toll-free lines to use in reporting violations of anti-harassment and equal employment opportunity policies. Information received through an anonymous tip should not be used, in and of itself, as a basis to discipline or discharge an employee. Rather, it should serve as the basis to begin or continue an investigation. If information obtained as a result of an investigation that was initiated due to an anonymous tip reveals a violation of a company policy, discipline or discharge, of course, is appropriate. Your investigation of allegations included in an anonymous tip may include use of the following:
- If the tip comes via the telephone, attempt to elicit as much information as possible from the anonymous tipster that will help you identify potential witnesses with whom you may wish to talk and pinpoint the employees involved in the alleged discrimination/harassment.
- If the tip is in the form of a handwritten note, you may try to determine if any members of supervision recognize the handwriting. If you are able to identify the employee who is the tipster, you could contact them and try to obtain additional information.
- If you are able to determine from the tip the area of the facility where the harassment or discrimination may be occurring, it would be appropriate to alert supervision in that area that you have received the tip and determine whether they have information that would suggest the misconduct was going on. (Of course, this is not a good idea if the supervisor(s) are accused of the harassment/discrimination.) Even if they do not have information, they will be alerted to keep their eyes and ears open to potential issues.
- If you are unable to determine who is engaging in the inappropriate conduct, but the misconduct (e.g., graffiti or posting inappropriate photographs) is continuing, it may be appropriate to announce to employees that you have received information that the misconduct is occurring and you will be monitoring and investigating this situation. The fact that the employer is "on to" the conduct may cause the employee(s) engaging in it to stop.
2. How to deal with reluctant witnesses.
It is not unusual for employees accusing a co-worker or supervisor of harassment or discrimination (or who have information concerning the allegations) to be hesitant to come forward and allow their names to be used or to participate in the investigation. The individuals may fear retaliation or being ostracized by fellow employees for being a "snitch." The employer's dilemma then is it has first-hand information that harassment or discrimination may have occurred, but it may not have the evidence to support its case if the witnesses are not willing to come forward. Tips you may find helpful in handling these situations include the following:
- If an employee provides information but indicates he does not want his name used, try to encourage him otherwise by appealing to his sense of what is right. The only way the misconduct can be stopped is if people come forward. Otherwise, other employees could be subject to the same treatment without the company learning of it.
- Allow a few days to go by and approach the individual again. Ask him to rethink his willingness to come forward. The individual's conscience may have been bothering him, he may have second thoughts, and if approached again, he may change his mind.
- If there is more than one individual, try to appeal to them as a group to come forward. They may feel there is safety in numbers.
3. What if the alleged perpetrator asks to have a representative present during the interview?
In unionized facilities, employees represented by a union have certain representation rights during an investigation. Under the National Labor Relations Act, an employee who is being interviewed as part of the investigation about misconduct which may lead to disciplinary action against him or her is legally entitled to request that a union representative be present during the interview. These are known as Weingarten rights.
In a July, 2000 decision, the National Labor Relations Board granted non-union employees the same right as union employees to ask for representation at interviews their employer may request as part of an investigation. If the Board applies the same principles to representation rights in the non-union context as it has applied in unionized settings, the same limitations should apply:
- The right only exists if there is a reasonable expectation by the employee that the interview may lead to his discipline. The right does not apply to a meeting at which discipline is imposed.
- An employer does not have to offer a representative for the employee. The employee specifically must request a representative.
- If an employee requests a representative, an employer can exercise one of three options: (1) grant the request and halt the interview until the representative is present; (2) dispense with or discontinue the interview; or (3) offer the employee the choice of continuing the interview unaccompanied by a representative or having no interview at all.
The NLRB has also held in the past that an employer violates the NLRA (a) by refusing to inform an employee under investigation and his representative of the nature of the matter being investigated as well as (b) by refusing to allow the employee to consult with his representative before the interview. However, an employer does not have to reveal the information that it has obtained or the specifics of the conduct to be discussed. It need only make a general statement as to the subject matter of the interview, which identifies to the employee and his representative the misconduct for which discipline may be imposed.
4. Does the punishment fit the crime?
If you have concluded that disciplinary action is necessary, you should weigh the severity of the offense as well as the perpetrator's past disciplinary record. Even though you have a strong policy against discrimination and harassment in the workplace, it is not always the right answer to terminate the person for their conduct. You should consider the severity of the offense as well as the employer's past practice in addressing claims of this nature. The punishment should fit the crime, and not appear to be a knee-jerk reaction attempting to avoid legal liability.
5. Steps to help avoid claims of retaliation.
a. Unsubstantiated complaints
You generally should not take disciplinary action against an employee for making an unsubstantiated complaint about discrimination or harassment. They have a legal right to complain, and the mere fact you cannot prove their complaint does not mean they have abused the complaint procedure.
The keystone to avoiding retaliation claims is to keep the investigation as confidential as possible. Individuals who do not know of a complaint cannot later be accused of retaliation based on it. Accordingly, if an employee who has complained of harassment or discrimination in the past moves from one area to another, or a complainant's supervisor changes, there is no need to tell the new supervisor of the past complaint. The fewer people who know about the complaint, the smaller the chance of a successful retaliation claim.
You also want to make sure that accused employees are protected during the investigation. During an investigation, an employee accused of harassment or discrimination should be protected from unnecessary sharing of information about the accusations. Accused employees have legal weapons against botched investigations or bad-faith complaints. Potential causes of action include: defamation; invasion of privacy; intentional infliction of emotional distress; false imprisonment; and wrongful discharge.
c. Advising supervisors
You should let the supervisors of the complainant and the alleged perpetrator know that employees who have complained about discrimination or harassment or participated in the investigation, should be treated just as if the complaint or investigation had never taken place. They also should be asked to be watchful of possible retaliatory conduct against complainant.
d. Considering employee reassignment
Another issue that raises retaliation concerns is reassignment of the employees involved. You may want to consider reassigning the perpetrator, complainant, or both after resolution of an internal complaint. This may be appropriate even if the investigation is inconclusive as to what happened, if it is clear that these employees cannot work together productively. A reassignment takes them out of an atmosphere that might allow there to be future problems. Whenever possible, you should try to reassign both parties. Moving only the complainant can lead to the perception (and potential future claim) that you have retaliated against the complaining employee. Of course, if you can position the reassignment so that the complaining employee either volunteers for or agrees to it, you can avoid this issue.
e. Post-complaint monitoring
Post-investigation monitoring of the situation is appropriate. Part of your communication to the complainant may be instructions to report back to you periodically on whether he/she has experienced any additional or continuing problems. If the complainant does not report to you, you or his/her supervisor may want to seek out the complainant from time to time and inquire if there have been any other problems. Obviously, if there have been, you should follow up promptly. It also is appropriate to ask the supervisor or other management representative with responsibility over the alleged perpetrator to be alert to any future issues with the alleged perpetrator.
Obviously, how you conduct and handle internal investigations of discrimination or harassment complaints will have a significant impact on your ability to defend future claims. Having a strong, well communicated policy, having a uniform investigatory procedure, and being aware of the potential pitfalls, can make your investigations a positive rather than a potential liability.
Stuart R. Buttrick
Associate, Baker & Daniels
Phone: (317) 237−1038
Email: [email protected]
"The above article has been reprinted from the Indiana Employment Law Letter, published by M. Lee Smith, LLC."
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