Whether it’s harassment of discrimination, HR investigations are tricky at best, but attorney Jonathan Segal says that there are six common investigation mistakes that cause the bulk of the problems.
Segal, a sought-after speaker on HR legal topics, is a partner in the Philadelphia office of law firm Duane Morris LLP. His remarks were featured at a SHRM Anual Conference and Exposition.
Mistake #1. Managers Don’t Report Complaints to HR
Unfortunately, many complaints never even make it to HR. Supervisors tend not to report because:
- They are honoring a request for confidentiality from the employee.
- The employee requested no action be taken.
- The supervisor thinks the claim doesn’t have merit.
- The supervisor think the complaint reflects badly on his or her management skills.
- The supervisor thinks “competent managers should be able to resolve complaints on their own.”
You must tell your supervisors and managers that they are required to report complaints to you, says Segal—even if the employee asks for it to be kept confidential, even if the employee says don’t act, even if the supervisor thinks the claim doesn’t have merit. The decision of whether to investigate is yours, not the manager’s.
Mistake #2. HR Takes No Action on Anonymous Complaints
HR managers often think there’s nothing they can do with anonymous complaints, but you should act, says Segal. For example, you can send a memo out stating that there has been a complaint, reiterating the company’s position, reminding people of the complaint procedure, and stating “If you know who did this, please report so we can take disciplinary action.”
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Mistake #3. HR Ignores Exit Interview Complaints
If during an exit interview, an employee says, “I love it here, but I had to resign because of the harassment I have been experiencing,” watch out, says Segal. This sounds like a constructive discharge in the making. People think it’s too late to do something, but it’s not, he says.
You may want to tell the person, “Upon your resignation, we found out for the first time about this allegation. Would you reconsider your resignation while we investigate this and take appropriate action?” You’ve mitigated the situation and made a constructive discharge claim unlikely, Segal says. Even if the person does leave, you have an obligation to investigate, Segal notes.
How about if the terminated employee says that the termination was based on age, race, or ethnic bias? Look into it to be sure that there is no bias, Segal says.
Mistake #4. HR Assumes that the Government’s Investigation will be Sufficient
Managers are tempted to say, the EEOC will investigate, so we don’t have to. No, you do have to do your own investigation, says Segal. If you don’t investigate, it may appear that you don’t care, and furthermore, you want your side of the story to be clearly documented.
Mistake #5. Managers Ignore Apparent Patterns
Sometimes there is no complaint, but it becomes clear that there is a problem. For example, if many people are fleeing from one department, you should follow up, says Segal. Why leave that problem out there to get worse and develop into a lawsuit?
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Mistake #6. Managers Investigate When They Should Withdraw
There are a few situations in which you as the HR manager must not conduct the investigation yourself, says Segal. The most common are the following:
- When you have a personal relationship with either party.
- If you will be a necessary witness in any proceedings that might result.
- If you don’t think you can be objective.
- If “everyone knows” you hate the person who is being investigated.
- If you have to investigate the boss or the COO. You may want to outsource this investigation, says Segal.
In tomorrow’s Daily, we’ll present more investigation tips from Jonathan Segal, and brief you on an important update that you really shouldn’t miss.