A Road Map to Fairness
By Elaine Reall, Esq.
Managers, supervisors, and overworked HR professionals all face the specter of a sensitive workplace investigation from time to time. Allegations of illegal discriminatory behavior, workplace harassment and/or bullying, hostile-workplace assertions, or just straightforward favoritism based on a workplace romance between employees all regularly confront employers.
When to Investigate
The first question that employers need to ask is, does a formal or informal investigation need to take place? Not all workplace gripes or groans warrant an investigatory response.
Elaine Reall
“The first question that employers need to ask is, does a formal or informal investigation need to take place? Not all workplace gripes or groans warrant an investigatory response.”
For example, mandatory overtime in understaffed healthcare facilities is the subject of numerous complaints. And while it makes good employee relations sense to address such an issue, nothing in such a scenario rises to the level of warranting an investigation. However, if a formal or internal complaint indicates the possibility or probability of illegal discrimination, physical or emotional abuse, criminal misconduct, retaliation for whistleblowing, or OSHA-related safety or health issues, an employer would be wise to seriously consider initiating an investigation.
If an actual complaint exists (as opposed to vague rumors), prompt investigatory action is best practice, as it preserves evidence, prevents fading of witness memories, and demonstrates employer credibility. Yet, in a situation where only rumors and secondhand observations abound, an employer must weigh the pros and cons of pursuing an investigation without an actual complaint serving as an investigatory road map.
Who Should Investigate
Employers should begin by assessing the experience and background of managers and HR professionals working for the organization. Do such individuals have training and experience with internal workplace investigations? How critical is the confidentiality of information? Is there a high likelihood of legal action?
When considering inside versus outside investigators, consider this quick checklist:
• Do legal issues of document protection and privilege exist?
• Will the workplace benefit from a factual/credibility determination by a disinterested party?
• Evaluate the need for a general versus detailed findings/report.
• What is the likelihood of administrate agency (MCAD, etc.) or court action?
• Consider the need for professional demeanor.
• What is the value of inside managers/HR professionals being trusted in sensitive situations?
As a general rule of thumb, an experienced investigator (regardless of internal or external status) will be the most cost-effective.
Timing of Investigation
Prompt investigations are better investigations. Hoping that issues will simply go away is a surefire way for an employer to torpedo a strong result. Timely investigations deal efficiently with issues such as fresh witness memories, existing documentation, and lack of employee turnover. Investigatory urgency also lends a certain energy to the findings or report.
Unfortunately, employees often delay reporting serious issues and incidents to an employer for a variety of reasons. Often, the first evidence of a pattern of sustained harassment comes from information gathered during employee exit interviews. The best way to avoid this result is to actively encourage employees to report problems or concerns while they are still small (and fixable). The use of IT tools to make reporting of employee concerns simple and non-confrontational is a great adjunct to the traditional open-door complaint process used by many organizations.
Strategy, Strategy, Strategy
Nothing is more vital than extensive planning before starting a formal workplace investigation. Take all, or most, of the following actions:
• Gather and review relevant workplace documents;
• Read personnel files of potential witnesses and ‘suspects’;
• Do a deep Google dive on relevant parties;
• Do initial assessment of the nature of the complaint;
• Obtain legal advice about whether the subject matter may be legally privileged; and
• Outline the who, where, and why of the investigation (best investigator, best location for interviews, format for witness statements).
Limit Scope of Investigation
Finally, the workplace is not a judicial setting. Narrow the scope of your investigation to factual determinations. Examples: did X do/ask/physically touch, etc.? Did X violate employer policy? Do not introduce legal jargon or conclusions into the investigation. Example: don’t ask if someone created a hostile work environment.
Written Reports
Where a written report is appropriate or necessary, plain but detailed language is best for an investigator’s notes. Witness answers plus the investigator’s impressions and observations (example: tone of witness, loudness of response, marked body language) should be detailed.
Include specifics in the notes and in the final report. Outside third parties will view such detail as evidence of due diligence on the part of an employer. And, lastly, don’t depersonalize the report’s language; include actual names and identifying information (dates and times, locations, witnesses, and interview format [in-person versus Zoom]).
Written Versus Oral Report
If it has been a significant investigation, an employer needs to create a separate, stand-alone written report. Tip: do not file such a report in a regular employee personnel file. A distinct investigation file should be created. Written reports should not attempt to draw legal conclusions.
Consider notifying the complainant(s) and accused party of the general outcome of the investigation. Failure to do this almost always leads to such parties looking for answers outside the workplace, including talking with a lawyer.
Last, but never least, strive for a proper investigatory behavior and demeanor:
• Learn the value of silence and open-ended pauses;
• Don’t rush through questions;
• Ask a question and then actively listen;
• Remember to include open-ended questions to encourage witnesses to talk;
• Maintain a detached demeanor (avoid emotionally charged statements); and
• Absolutely avoid promises or guarantees.
Conclusion
Following the guidelines outlined above will help you create a solid investigatory road map. If you have any questions or concerns about the above policies, it is prudent to contact a labor and employment attorney so that the best investigatory practices can be followed and you can, hopefully, avoid unnecessary litigation.
Elaine Reall is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.
Massachusetts has created various public programs for certain diverse business enterprises to address this issue, such as the state’s certification program through the Supplier Diversity Office (SDO).
