The truth is rarely pure and never simple (Oscar Wilde once said), and nowhere is that more true than when investigating workplace allegations of harassment, theft, discrimination, safety violations or substance abuse. Here are a few tricky situations that pose challenges investigators need to understand so as not to let the process derail.
The Reluctant Complainant
The reluctant complainant comes forward but says: “I just thought you ought to know, but I don’t want you to do anything about it.” In response, you should:
• Explain your responsibility under the company policy and the law to maintain a harassment-free workplace and investigate the complaint. You do not have a choice, and must investigate.
• Not guarantee confidentiality to the complainant either before hearing the complaint or after. Rather, explain that you and the company will maintain confidentiality to the greatest extent possible.
• Not make any representations about what punishment the accused will receive before the investigation is concluded. Rather, explain that the company will take the complainant’s views into consideration when determining any action the company may take, but that the ultimate decision is dictated by company policy.
The Complainant With Significant Performance Problems
In this situation, the accused or the complainant’s supervisor has informed the company investigator that the complainant has significant performance problems and that the allegations are his or her way of retaliating against the supervisor and are untrue. In this case, the investigator should:
• Carefully review any documentation of the complainant’s performance problems. Compare the documentation with the supervisor’s stated explanation of the performance problems and ascertain if the two match or are otherwise compatible.
• Talk to other managers or co-workers who can confirm or refute the allegations of performance problems.
• Raise the issue of the performance problems with the complainant. Document the response and conduct any necessary follow-up.
• Determine whether the performance problems that are documented and/or confirmed by interviews with other managers or co-workers match the severity of any disciplinary action that was imposed on the complainant.
The CEO as the Accused Party
When the CEO or other high-level manager is the one accused of harassment or other wrongdoing, the company’s regular investigator(s) may be intimidated or inhibited in the investigation. It is best to avoid even the appearance of this problem. Consider:
• engaging an outside investigator who will not be intimidated by the CEO’s rank while conducting the investigation; or
• involving the board of directors or the high-level manager’s direct supervisor in the investigation to ensure that it is conducted fairly by someone who does not ultimately report to the accused; and
• involving counsel early on in the investigation, since any finding of impropriety may be the basis for vicarious liability for the employer in the case of a harassment claim.
NOTE: On Sept. 14, Thompson Interactive is sponsoring an important teleconference on workplace investigations, Investigating High-Level Employees: Tips and Tools for Handling Delicate Matters.
Investigating the Complainant/Accused Who Already Has an Attorney
The complainant/accused already has an attorney who he or she wants to bring to the interview. He or she may already be threatening a lawsuit.
• Do not allow him or her to bring his or her attorney to the interview. Explain that it is company policy that company investigations are conducted without attorneys present. The presence of an attorney will only serve to limit the gathering of information necessary to conducting a thorough investigation. Do not be forced into a situation where both the company and the complainant/accused are bringing attorneys to the interview.
• He or she should not speak to the accused/complainant’s attorney. If the investigator is contacted by the attorney, he or she should explain that he or she is not at liberty to discuss the matter.
• Involve in-house counsel early on. Especially if the accused/complainant’s attorney persists, you may want to get some early advice on the merits of the claim and how to handle the situation further.
NOTE: This is excerpted from the Employer Compliance Guide for the HR Generalist by Thompson Publishing Group.