Workplace investigations 101: What to do when employee makes an allegation

Workplace investigations typically start with an allegation. Perhaps an employee makes a complaint about another employee or manager. Or perhaps he or she advises of an employee harassing another employee. Regardless of the specifics of the allegation at hand, there are some steps that employers should always take at the start of the process. Having a workplace investigation plan ready before you need it is one of the keys to success.

Workplace investigation 101: What to do when an allegation is made

The first thing to do depends on who is bringing the complaint. The actions will differ depending on whether the person making the allegations is the victim, a concerned but uninvolved party, or an anonymous source.

If the allegations are made by a concerned party who is not the alleged victim of the harassment, get the following information:

• Who is the alleged victim(s)?
• Who is/are the alleged bad actor(s)?
• How did the concerned party get his or her information? (i.e. Did he or she observe the behaviors? Did someone tell him or her about what was going on? If so, who told him/her?)
• What exactly are the behaviors at issue?
• Over what period of time have the behaviors occurred?
• Are there any witnesses to the behaviors? Who are they?

If the alleged victim makes the complaint, get the following information:

• Who is/are the alleged bad actor(s)?
• What exactly are the behaviors at issue?
• Over what period of time have the behaviors occurred?
• Are there any witnesses to the behaviors? Who are they?
• How would he/she like to see the problem resolved?

If the allegation comes from an anonymous complaint, then there is often no way to follow up for more information. As such, the main thing you’re able to do is decide how much of an investigation can or should be conducted based on the limited information you were given. But be sure to treat anonymous complaints as seriously as any other allegations.

Workplace investigation 101: Considerations before you begin the investigation

When a complaint comes in, there are a few things to remember beyond the investigation:

1. Tell the person that the company takes the allegations seriously and there will be a prompt and thorough investigation—even if your instinct is that the complaint is frivolous. Let the individual know that he or she may be contacted again for further information.
2. Consider (depending on the type of allegation) whether you will reassure the complainant that there will be no retaliation. “I can’t emphasize the retaliation concern more.” Marc Jacuzzi explained in a recent CER webinar.
   
   “In California, retaliation can be a stand-alone cause of action.” If someone registers a harassment complaint in good faith, for example, they have the protection from retaliation for doing so. The statement you make to them (explaining that retaliation for this action is not allowed) should be documented.
   
   “Witnesses who participate in an investigation are also protected from retaliation and you should let them know to come to you with any retaliation concerns. The employer can also advise the alleged perpetrator that retaliation will not be tolerated. For all people involved, explain that the company has a policy against retaliation and give examples of retaliatory behavior or conduct.
3. Consider whether there is a potential confidentiality issue. The NLRB*says that employers must determine, in the particular circumstances of any given investigation, whether confidentiality should be required because witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.
   
   Because at least one of these concerns is present in most investigations, employers and HR should continue to instruct employees regarding confidentiality during investigations. Be sure to document the reason for the confidentiality. The reason this is a concern of the NLRB is because instructing employees to keep everything confidential when there is no need for confidentiality may run afoul of employees’ rights for concerted activity.

The above information is excerpted from the webinar “Workplace Investigations from Complaint to Closure: A Step-by-Step Guide for California HR.” To register for a future webinar, visit CER webinars.

*Note: there is a current question regarding the NLRB ’s authority over cases in 2012 due to some concerns whether or not the most recent NLRB appointments occurred properly. Recent decisions could be voided if the appointments are found to have been made improperly.

Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.