Federal and state law requires employers to provide a workplace that is free from unlawful discrimination and harassment. If discrimination or harassment is reported, the employer has a duty to exercise reasonable care to prevent and promptly correct inappropriate behavior. Failure to do so may result in significant liability to the company.
An effective workplace investigation serves several equally important purposes:
- Reduces liability risk, and
- Puts employees on notice that their concerns are taken seriously, which positively impacts employee morale, performance and turnover.
Properly conducting the investigation is critical to obtaining beneficial results. There are many examples of significant jury awards in favor of plaintiff because the court concluded that the investigation was insufficient. Courts have been critical of employer investigations that lack a formal investigation plan, did not include witness statements, and failed to reach a conclusion, or take action designed to stop inappropriate conduct despite the investigation findings.
Fortunately, the courts have also been instructive in identifying best practices, including:
- Investigation conducted by a trained HR representative or neutral third party.
- Investigation began immediately upon learning of the alleged wrongful conduct.
- Investigation plan included an outline of open ended questions designed to elicit facts, not opinions.
- Investigator spoke to witnesses more than once when contacted for follow-up discussion by witnesses.
- The accused was notified of the allegations made and provided an opportunity to tell his or her side of the story.
- After interviewing important witnesses, the investigator met with the complainant and the accused again to provide another chance to provide information and to clarify or correct their own statements.
- Investigation was concluded with a written investigative report that detailed the conclusions and the rational for the conclusions.
Employer takeaway: The process and procedure for conducting the investigation is just as important as the result. Courts have found that even where the employer reached an incorrect conclusion, the employer reduced its liability where a prompt and appropriate investigation was conducted and the investigation supported the action taken by the employer.
Contributed by Maureen Rouse-Ayoub and Aaron D. Graves, Co-chairs of Bodman PLC’s Workplace Law Group.