By Mark Adams
Employers have an obligation to maintain a workplace free from unlawful harassment and discrimination. When it comes to the pillars and strategies for achieving this outcome, many focus upon their efforts and resources on training their management and employees. Others focus on promoting and reinforcing positive behaviors and conduct in support of their values and culture to pull their workforce together, foster greater employee engagement, and thereby collectively root out such inappropriate and unlawful conduct. Most, if not all, enforce existing policies or practices for compliance and employee-relations purposes.
Yet despite the myriad paths to take (whether individually or concurrently), one tool that is critical towards supporting all of them is the need to conduct effective and thorough investigations.
Internal investigations are a powerful tool. Done effectively, they can help mitigate and control the risk that an organization may face when a dispute or complaint surfaces. Is termination warranted? Some other form of discipline? Or no discipline at all? A thorough and objective investigation can provide the foundation and backbone to justify whatever action management chooses to take in response to a situation, especially if challenged by others or by opposing legal counsel (if litigation later ensues).
Investigations can also serve as a deterrent against inappropriate conduct occurring in the workplace in the first place. While some perpetrators will succumb to the temptation of engaging in bad conduct when they are not being supervised or when they feel management will not be able to get to the bottom of it, they may think twice or not do something at all when management has a reputation of taking complaints seriously and conducting investigations thoroughly.
Then there is the engagement benefit that comes with investigations. Employees often feel disengaged if they feel they don’t have a voice in the workplace when their concerns are ignored or are not addressed. Such disengagement can have severe consequences for a company. It can lead to lost productivity and turnover, and when it involves questions of illegal conduct, it can also lead to employees going elsewhere to air their concerns (such as by filing a complaint with a state or federal anti-discrimination agency or going to court).
By contrast, employers who conduct investigations in a timely, thorough, and objective manner can engender trust and credibility among their employees, and with that gained trust, employees are more likely than not to utilize an employer’s internal complaint- and problem-resolution procedures rather than going outside the organization.
Employers who ignore conducting them altogether do so at their peril. In an opinion handed down by the U.S. Court of Appeals for the Second Circuit, the court described the failure to investigate a sexual harassment complaint as follows: “an employer’s investigation of a sexual-harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may allow a jury to impose liability on the employer” (Malik v. Carrier Corp.).
So, do you have a plan for how internal investigations are to be conducted? Will it be by someone from inside the organization? If so, are they trained on how to conduct workplace investigations? Will you use an outside resource to conduct them on your behalf? Or will you evaluate which path to take on a case-by-case basis? For employers, it is important to have answers to these questions and have either the internal or external resources in place to be able to respond promptly. Failing to do so can lead to delay or inaction altogether, which can create greater risk.
Mark Adams, director of Compliance for the Employers Assoc. of the NorthEast, leads EANE’s HR Services Team. This article first appeared on the EANE blog; eane.org