By Audra Hedberg, PHR, PHRca, SHRM-CP, Senior Compliance Consultant at Trüpp
It’s been a productive week, and you’re just a few hours from sailing into the perfect weekend when you hear a knock at your door. A sense of dread washes over you as an employee steps into your office to file a complaint alleging harassment in the workplace. Whether it’s your first time dealing with this kind of complaint, or you’re all too familiar, you jump into action and begin to investigate, knowing that the slightest error could be devastating to your company. Avoid these common missteps when conducting workplace investigations.
1. Waiting too long to conduct the investigation
Complaints that require investigations need to be dealt with immediately. Employers cannot ask the employee to “put it in writing” to gain time to start the investigation. Ignoring complaints or putting it off because you feel the complaint is petty or without merit could put your organization at risk. While it is best practice to get complaints in writing, when possible, employers cannot require this as a condition of starting an investigation. Always take verbal complaints seriously by acting promptly.
2. Allowing the accused to remain in the workplace
While not all complaints warrant suspension of the accused after a complaint is received, employers should strongly consider a leave of absence or suspension if the complaint alleges egregious misconduct. When there is a complaint of harassment, for example, the employer must take adequate measures to keep the parties separated to prevent the alleged activity from recurring. Doing so will assist in providing a layer of protection for employers should a lawsuit occur and helps to maintain the integrity of the investigation.
3. Choosing the wrong person to conduct the investigation
Investigators should be objective, impartial, unbiased, uninvolved, and adequately trained to handle investigations. If your internal Human Resources employees or those generally assigned to conduct investigations have any actual or perceived interest in the parties involved, employers should strongly consider outside help from experienced professionals who can lead an unbiased investigation. If you choose to outsource the investigation, many Human Resource professionals will work alongside internal or external counsel to keep the investigation privileged. Hiring an Human Resource professional typically reduces your legal costs.
4. Making legal conclusions
Once all the facts are collected, and interviews are complete, investigators should review all of the evidence and reach a conclusion for each allegation. Base the decision on the evidence collected, policy or procedure violations, and whether the conduct was appropriate for the workplace. Never include a legal conclusion such as “harassment occurred“; leave legal findings up to a judge and jury should a lawsuit occur.
5. Not taking action after the investigation or following up with complaining employee
At a bare minimum, it’s essential to follow up with both the person who filed the complaint and the accused once the investigation is complete. Take the appropriate action relevant to the findings, whether that be termination, corrective action, required training, or other remedies, all of which must be in line with the level of misconduct and aligned with the company’s disciplinary guidelines. It’s important to note that no one, including witnesses or the person who complained, should be told what disciplinary action was taken. Finally, once the investigation is closed out, check in with the person that initiated the complaint to ensure there aren’t any other issues or retaliation concerns that require follow up.
Handling harassment complaints is never easy, regardless of your level of experience. Reduce employee risk by ensuring your organization has a harassment policy with a clear reporting pathway and investigation procedure in place. Follow up immediately to any harassment complaint and maintain a strict chain of custody by documenting all conversations and actions taken.