Conducting Workplace Investigations

It’s Monday morning and you are starting your busy week as a human resources (HR) director. An employee comes into your office, closes the door, and tells you she feels she is being sexually harassed by her supervisor, who is also the head of the entire department. What do you do next to appropriately investigate and respond to concerns about harassment or illegal workplace behavior?

Promptly Respond
A complaint about discrimination, harassment or retaliation or improper workplace behavior is serious business, so an employer must investigate these concerns as soon as possible. Sometimes an employee bringing forth a concern may want to keep their concern strictly confidential because the employee doesn’t want to get the supervisor in trouble, or fears the supervisor will retaliate for the complaint.

Although you may want to be solicitous of the employee’s feelings, doing nothing is not an option. Now that you know there’s a  problem, you must take steps to investigate the employee’s concerns and appropriately address the issues raised.

Determine Who Should Investigate
This is an important consideration that is sometimes ignored. It is often appropriate for the HR director to conduct the investigation because it is part of their job, and the HR director is likely the person in the company with the most training and knowledge about employment-related laws and investigations.  

However, in some instances it is more appropriate for someone else to investigate the concern, such as the in-house counsel for the employer, the employer’s outside attorney, or a third party who is an experienced and reputable investigator of employment-related matters (many times selected with the help of the employer’s legal counsel).

For example, it may be appropriate for someone other than HR to conduct the investigation when the alleged harasser is someone who supervises or has some measure of control over the HR director. Also, an attorney may be a good choice to ensure that communication remains confidential and privileged. What an employer wants to avoid is any argument that the investigator could not conduct an effective investigation because he or she was biased in favor of the alleged harasser, or was afraid to reach a particular conclusion because the harasser had the authority to retaliate against him or her.

Review Policies
Most employers already have policies in place that prohibit harassment, outline expectations of appropriate behavior, and provide for a complaint and investigation procedure. A review of existing policies is helpful to reorient yourself to workplace expectations and the investigative process.

Interview the Employee
It likely makes sense to first interview the employee who raised the concern. You will want to understand from the employee what happened, and any other facts that put the concern in some context. When and where did events happen? Are there any witnesses? Is there any other information that could shed light on these concerns, such as emails, text messages, voicemails or any video footage of company premises?

You want to get as much information as possible and to be thorough, but this interview should be a thoughtful discussion with the employee as well. You should emphasize that they did the right thing by coming forward to enable the employer to understand and address their concerns. You should also assure the employee that no retaliation will occur. You cannot say that you will keep their concerns strictly confidential or not act on the concerns. Although you will be discreet in any investigation and problem resolution, these concerns need to be appropriately addressed.

Decide Intermediate Measures
Based on what you learn from the employee, you may conclude that some intermediate steps should be taken to ensure that the workplace remains professional pending the conclusion of the investigation. This could mean separating the alleged harasser from the employee by placing the alleged harasser on administrative leave or by making arrangements for different work schedules or work areas. It can be challenging to determine what, if any, intermediate steps are appropriate, but the goal is to maintain a professional work environment and ensure that the employee is not retaliated against or subject to any inappropriate conduct by the alleged harasser.

Interview Witnesses/the Accused
After you understand the employee’s point of view, you will reach out to separately interview any other witnesses who you believe may have pertinent information and then speak to the alleged harasser. You may decide to interview the alleged harasser first, to get their side of the story.  If he or she is basically in agreement with the facts the employee relayed, you can decide if further interviews are necessary. In your interviews, you may learn information that makes you realize you need to ask the employee and/or the alleged harasser further questions, or track down additional information such as time clock information or work schedules, or speak to more witnesses. If you feel there is a gap in information or remaining questions you think are important, follow up.  

Reach a Conclusion
After your investigation is completed, reach a conclusion about the facts and document your conclusion. Bear in mind that your investigation may be later reviewed and criticized if a dispute arises and that this is an important process for the company, the employee and the supervisor.  Keep contemporaneous notes of your interviews and your summary of facts to the point and accurate. Leave out any editorializing or characterizations. This summary should stick to facts relayed to you and your conclusions of what happened.  

Decide Appropriate Measures
Based on your determination of the facts, a decision needs to be reached about what are appropriate measures to effectively address the employee’s concerns. This may be a decision that is up to you or an upper management team based on your factual conclusions. You may or may not be asked to provide recommendations based on your factual summary.

The goal here is to effectively remedy the concerns raised and to take all necessary steps to ensure that the problematic behavior does not recur and that a professional workplace is maintained. The employee should be informed that their concerns have been taken seriously and are being appropriately addressed, and that you will remain in contact to ensure that no additional concerns arise and no retaliation occurs.

Prevent Retaliation
It is critical that the measures taken to address the employee’s concerns are effective. Maintain periodic contact with them to ensure that the workplace remains professional and free of harassment or retaliation.

Employment-related investigations are critical to addressing employee concerns, and they must be done promptly and thoroughly to protect employees and safeguard against improper behavior in the workplace.

Elizabeth A. Bailey is a shareholder at the Manchester-based law firm of Sheehan Phinney, who works with professionals to develop strategies to avoid employment-related problems. She can be reached at ebailey@sheehan.com.