By Deena B. Rosendahl, Esq.
When an employee brings an internal complaint to management’s attention before filing a charge or lawsuit, employers have the unique opportunity to head off costly litigation by conducting a thorough investigation and, when necessary, taking appropriate corrective action. Unfortunately, too many employers make the costly mistake of not taking full advantage of this opportunity by conducting a shoddy investigation. Mistakes made during the investigation phase usually can’t be corrected down the road, especially if litigation follows.
In no particular order, below are the top ten mistakes employers make when investigating internal complaints.
- Having the Wrong Person Conduct the Investigation:
Companies tend to have their “own people” (human resources or a member of upper management) investigate internal claims. Cost savings is usually the number reason companies prefer to have their own people conduct an investigation. Don’t be short sighted. Remember, upper management and your human resources personnel are still employees themselves. They have their own loyalties and their own biases toward other employees of the company which may skew your investigation. Using an outside person with no particular ties or preconceived notations about the persons being interviewed or allegations raised will give credibility to your investigation and its findings and will end up saving you money down the road when litigation is either avoided entirely, or your Investigation proves to significantly limit your liability.
- Interviewing the wrong witnesses:
A complaining employee may tell you there were no witnesses to the alleged event or may only give you the names of one or two potential witnesses. Names provided by the complaining employee is your starting point, not your end point. Never limit your investigation to just the complaining employee, the alleged wrong doer, and the names of possible witnesses provided by the complaining employee. Think outside the box and consider interviewing others (i) who worked the same hours as the parties, (ii) who report to the wrong doer, or (iii) whose work stations are in close proximity to the complaining employee, the alleged wrong-doer work or the location of the alleged event. Lastly, when interviewing potential witnesses, additional names may be provided. Remember to follow through and interview these persons as well.
- Failing to expand the investigation when necessary:
During an interview, a witness may disclose different workplace concerns than those raised by your complaining employee. Tunnel vision will be costly. Once you learn of a possible workplace concern, you have an obligation to investigate it.
- Your goal is to prove or disprove the allegations:
You should have one goal when conducting an investigation and one goal only: to discover what actually occurred. Wanting to prove or disprove that something occurred will skew your view of the witnesses and parties credibility, the interpretation of facts, and even the decision regarding who should be interviewed.
- Failure to consider relevant documents:
Any investigation of wrongdoing should start with reviewing the company’s internal policies and practices regarding the event in question (e.g: Code of Conduct policy, Anti-Discrimination policy, Progressive Discipline Policy, etc.) Most likely, whatever the complained of conduct is, it can be tied to some internal policy or practice which has allegedly been violated. Make sure you also ask about and review written communications (social media posts, emails and text messages) between the parties and even potential witnesses.
- The investigator becomes the witness:
As the investigator, your role is to uncover information in the possession of others. Your job is to ask questions, not answer questions or provide information. Sharing information with a witness may inadvertently lead the witness and influence their perspective.
- Allowing Witnesses to Speak to One Another about the Investigation:
Every person being interviewed should agree to keep the contents of your interview confidential. Most investigations take more than one day. An employee who has not yet been interviewed but learns in advance what questions are being asked and what answers were provided, may end up copying responses or being influenced by what was already said. This will compromise the integrity of your investigation.
- Failure to communicate your findings to the Complaining Employee:
While there is no legal requirement that you share your findings with the complaining employee, it’s just good practice to do so and could even be just what stops an employee from filing a lawsuit. While details do not need to be shared, a complaining employee should be told in summary what your conclusion is and whether any steps are being taken to address their concerns. If no wrong doing is found, encourage the complaining employee to come forward if any new information comes to light. Employees who feel they have been heard and taken seriously are less likely to proceed with litigation.
- Failure to follow up after the investigation is concluded:
If a wrongdoing is discovered, remedial action should be recommended and taken. Afterwards, remember to follow up with the complaining employee! Make sure the remedial action taken actually resolved the problem. If it didn’t, further action may be necessary. If no wrong-doing occurred, it’s still wise to circle back with the complaining employee and find out how they are doing and if they have experienced any new concerns. Again, knowing they were heard and taken seriously may go a long way in preventing litigation.
- Not recognizing a Complaint is actually a Complaint: This may very well be the number one mistakes employers make. The scenario looks something like this: Employee approaches a manager or even human resources and states he/she has something to discuss in “confidence” and asks manager not to repeat the complaint. In fact, the employee may even go so far as to say “I don’t want you to do anything, I’m just venting” or words to that effect. Management’s standard response to these statements should always be: “I can’t do nothing”. Your obligation is not just to the Company, but to protect the employee, even from him/herself. This means all complaints should be addressed, even the “unofficial” complaints. More times than not, when these situations end up in a court of law, the Plaintiff employee almost always alleges that management knew about the situation and did nothing, referring to the “complaint that wasn’t a complaint”.