When an employee complains that a supervisor or co-worker is harassing or bullying them, or engaged in discriminatory or other illegal conduct, an investigation is often required to resolve the matter. However, few managers are trained in how to conduct them. Speaking at BLR’s National Employment Law Update this week in Las Vegas, Attorney Rebecca A. Speer, (Speer Associates, San Francisco, CA), offered a 7-step approach for getting started on an investigation. Her protocol should be helpful to anyone facing this problem.
1. At the outset, clearly define roles and establish a clear “need to know” protocol:
- Who will “manage” the investigation (e.g., set up witness interviews, etc)?
- Who will receive detailed information during the course of the investigation? (and, who will not?)
- When will you engage legal counsel? What role will counsel play?
2. Emphasize neutrality, and the importance of the “process” in your discussions with management (and others).
3. Decide whether interim measures are necessary, based on:
- Nature and severity of the allegations
- Whether the accused and complainant(s) can be separated
- Concerns regarding a possible retaliatory response
- Disruption to the organization
- Other factors.
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4. Decide on the timing of informing (and interviewing) the accused, examining
- The need for interim measures (e.g., paid leave)
- The demands of the investigation
- The anticipated response by the accused
- Confidentiality concerns
5. Decide on the timing of informing witnesses
6. Engage in constructive messaging
- Avoid inflammatory language
- Exercise discretion
- Decide whether to identify the complainant
- Scripting is often very helpful
7. Enforce “confidentiality,” but don’t excessively “hide the ball.” Be open and forthright about what you can reveal:
- The objective of the investigation
- The role of the investigator
- The investigative process
- The ground rules.
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