In the last issue, we discussed the sigh of relief employers can breathe now that the NLRB has held employers may require confidentiality during the course of workplace investigations. The sharp inhale may return, however, when trying to determine how to handle the investigation. When an employee complains that he/she has been harassed/discriminated/retaliated against, an investigation must ensue, but what does that look like?

Determining Who Investigates

First, an employer must determine who is going to conduct the investigation. Depending on the allegations and individuals involved, conducting the investigation internally may create bias-related/neutrality concerns. However, retaining outside services (e.g., an attorney or HR-professional) may escalate an already tense situation and/or may not be necessary given the nature of the complaint. While consistency in policy and process when handling employee complaints is important, the decision regarding “who” investigates is often fact-specific and must be analyzed on an individual basis in order to determine the best course of action for employees and employer. Overall, a neutral investigator is one who acts in good faith and fairly listens to both sides.

Conducting an Internal Investigation
If an employer chooses to investigate internally, most investigation teams consist of HR professionals and/or management. However, no team should include the individual against whom the complaint has been alleged. Employees must be encouraged to speak candidly in a non-confrontational environment. Therefore, an investigator(s) should not be personally involved in the alleged incident(s) of harassment; should have a thorough understanding of company policies and equal employment opportunity obligations; and should be able to remain impartial, objective, and fair during the investigation.

Overall, the Equal Employment Opportunity Commission (“EEOC”) has published general guidelines for conducting an effective workplace investigation, available at https://www.eeoc.gov/policy/docs/harassment.html (as read in conjunction with Vance v. Ball State Univ., 133 S. Ct. 2434 (2013)). The next task of an investigation is generally to gather all relevant facts and evidence and speak to witnesses with first-hand knowledge. Investigator(s) should gather: (1) Date(s)/Time(s)/Location(s) of incident(s); (2) Employees/other witnesses involved; (3) Nature of allegations (discrimination, harassment, retaliation, etc.); (4) Effect of alleged incident(s) (anxiety, unable to perform work duties, hostile work environment, etc.); (5) Requested remedy (with the disclaimer that no request is guaranteed).

Inviting the complainant to provide a written statement (or fill out a complaint form) is often helpful. The accused should also have a fair opportunity to respond. However, it is important to repeatedly emphasize that retaliation against any employee who issues a complaint or participates in an investigation is expressly forbidden and will lead to discipline, including to termination.

Documenting the Investigation
Documentation helps support the occurrence of an investigation and the prompt action being taken by the employer (as required under the law). Investigator(s) should document the date of complaint; witnesses interviewed; when/where interviews occurred; investigator(s) present; information disclosed/gathered; analysis of information; action(s) taken and reasoning, etc. Having a careful record is important for production to a future investigating state or federal agency, opposing counsel, or court of law.

Because investigation documents are not likely privileged and may be requested in the future, any notes should focus on clear and concise fact-finding; be accurate; be written contemporaneously with, or soon after, each interview for reliability purposes; identify the note-taker and dates written; not admit liability or fault on behalf of the employer; be free from retaliatory language against any employee interviewed; and be clear of inconsistencies with later conclusions.

Employers should keep investigation notes/findings in a confidential file separate from personnel files (excluding discipline/probation/termination documents, which may be placed in personnel files).

Concluding the Investigation
At the conclusion, the investigator(s) should carefully review notes and consider inconsistencies, credibility, evidence produced, any repeated behavioral patterns, strength of witness observations/statements, etc. Ultimately, the investigator(s) must determine whether the alleged conduct [occurred/ did not occur /is inconclusive], what policies and laws are implicated, and what the recommended action should be. Actions should be reasonable and responsive to the complaint/findings, and the employer must ensure consistency with internal policy, past practice, and equal opportunity guidelines and laws. For example, if the employer substantiates claims of sexual harassment and offers anti-discrimination training and probation to one harasser, then it must implement the same action the next time. Employees (and courts) generally look for fairness and consistency.

Conclusion

Whether handling an investigation internally or outsourcing investigation services, careful planning and policy implementation on the front-end may ease employer burden (and liability) significantly. At any point needed during the process, employers are encouraged to seek legal counsel.

KrisAnn Norby-Jahner focuses on employment and education law in the Vogel Law Firm‘s Bismarck, ND office. She can be reached at [email protected] or 701-258-7899.