With sexual harassment dominating the headlines, an increase in harassment complaints in the workplace will likely follow. Employer investigations of harassment complaints should not be overlooked and are vital when providing a defense to harassment claims filed against an employer. The following are five best practices to keep in mind when investigating claims of harassment:
- Investigate promptly. “Prompt” is the buzz word used by the Equal Employment Opportunity Commission (EEOC) and federal courts relating to the timing of an investigation into an allegation of harassment. Whether an investigation is considered “prompt” will depend on the specific allegations of the harassment complaint. Serious allegations may require immediate action while other situations may call for scheduling a time in the near future to gather more details from the victim in order to launch the investigation. In any event, fast action sends the message to employees that the employer takes these issues seriously and will send that same message to the EEOC or a court. Remember that complaints may be formal or informal and all complaints, regardless of how they are learned, should be considered serious and treated with respect.
- Choose an effective investigator. The individual or individuals that conduct the investigation should be independent of both the complainant and the accused. For instance, the accused should not have supervisory authority over the investigator. The investigator should be trained on how to conduct interviews and evaluate credibility. The investigator should also be fair, impartial, and credible. An important question to ask when selecting an investigator is how the investigator would appear as a witness before a jury when representing the employer. In certain situations, an attorney may be a good choice for an investigator. It is important to remember, however, that if an employer hires an attorney to conduct the investigation, the attorney-client privilege could be waived if the employer seeks to introduce evidence at trial of the investigation, which could also lead to disqualification of the attorney from representing the employer in any lawsuit relating to the allegation of harassment.
- Maintain confidentiality to the extent possible. Due to the sensitivity of complaints of harassment, ensuring confidentiality to employees facilitates the investigation because it helps employees feel comfortable making such complaints and in providing accurate and thorough facts about the complaint. Confidentiality, however, may not necessarily be absolute. The National Labor Relations Board (NLRB) has weighed in on confidentiality requirements for both union and nonunion employers relating to workplace investigations. The NLRB has found that is proper to require employees to maintain the confidentiality of an investigation only if the employer can demonstrate that (a) witnesses need protection; (b) evidence is in danger of being destroyed; (c) testimony is in danger of being fabricated; or (d) there is a need to prevent a cover-up. This is the current stance of the NLRB, for now. It is notable that the current NLRB General Counsel Peter Robb issued a memo signaling that his office may be seeking to change the NLRB’s confidentiality standards with respect to workplace investigations. For this to happen, the right case must be presented to the NLRB. For now, employers should be mindful of the NLRB’s current requirements for maintaining confidentiality.
- Come to a conclusion and take appropriate action. After interviews are conducted, evidence collection is completed, and credibility issues resolved, a decision should be made relating to the complaint of harassment. The investigator should present the evidence and findings for review and management should make the final determination of any employment actions that are warranted based upon the investigator’s report. To further maintain that the investigation is “prompt,” the investigation should be officially closed and the complainant advised that it is over. If inappropriate conduct or harassment is determined, the complainant should be advised that appropriate corrective action has or will be taken. When necessary, employers must take corrective action that is appropriate to the situation, which may include training, discipline, or even termination. Courts typically defer to employers relating to what action is appropriate given the conclusions of the investigation. Importantly, the action should stop any inappropriate conduct and should other issues be reported, more severe action may be warranted.
- Be mindful of documentation. Finally, throughout an investigation, documentation should carefully be maintained. It is important to keep in mind that any documentation relating to the investigation will likely be used as an exhibit should formal legal action be taken relating to the complaint. Be careful not to express bias or opinions in interview notes. All investigation materials should be retained. Finally, remember to properly document the conclusion. Even if the investigation was inconclusive, this should be documented. The goal of documentation is to ensure that if a judge, jury, or government agency were to review it, they would conclude that the employer took the situation seriously, responded promptly and appropriated, and had a good-faith basis for the result of the investigation and actions taken, if any.