Workplace Investigations: Avoiding Litigation

Do you have a formal process for workplace investigations? Do you know how to protect yourself from discrimination claims? Every adverse employment action you take could potentially be the basis of a claim of discrimination. Complaints and investigations are serious and should be treated as such because it’s easier than ever for an employee to turn a simple complaint into a full-blown discrimination or retaliation lawsuit.

To protect your organization, you must have an effective strategy in place for every phase of the process, from the moment you hear a concern to the days and weeks after your investigation is complete. Although you cannot prevent a person from suing, you can take certain actions to help insure that any lawsuit has less of a chance of success. In a BLR webinar titled "Workplace Investigations from Complaint to Closure: A Step-by-Step Guide for HR," Robert A. Kaiser outlined some guidance for employers in this situation.

The Basics of Workplace Investigation

It is safe to assume that nearly every employee falls into one or more of the protected classes. This highlights the need to be thorough and consistent when you investigate complaints. If you’re thorough, you’re more likely to uncover the real story and be able to act accordingly. If you’re consistent in how you treat employees and how you conduct investigations, you’ll have more of a defense indicating you did everything in your power to be fair and provide an employment environment free from harassment and discrimination.

Conduct as thorough an investigation as is practical. A reasonable business will act on the basis of good information. This information will be found from an investigation used to determine the circumstances underlying the actions taken by all. This information is then the basis for discipline or termination. At a minimum, this means your investigation should include an opportunity for the employee to explain his or her side of the story. After conducting a thorough investigation, an employer must decide whether to believe the employee’s explanation.

Documentation of Your Workplace Investigation

All discrimination suits, to some extent, involve credibility determinations between the plaintiff and one or more of the employer’s managerial employees. While it is a jury’s or arbitrator’s job to determine where the truth lies, the test they apply is &quotwere you reasonable in your actions?&quot

In order to minimize the likelihood of an unfavorable lawsuit you will want to go to great lengths to avoid getting caught in a case involving a strict determination of credibility. The easiest way to do this is documentation. Kaiser explained that &quotthe extent to which we document what it is we do, will dictate how much that person will be able to take advantage of a situation.&quot In other words, no matter what the truth is, the person who comes across as credible will be the one who prevails when conflicting information is presented. Documentation is your ally in this regard. Documentation allows you to be credible without forcing jurors to make the distinction.

This is especially important because many employment claims do not get to trial until years after the conduct actually occurred. If you maintain detailed and complete documents concerning the termination or other adverse job action of all employees, you will be better situated to be able to produce documentation outlining your actions during the time in question and better able to prove that you acted appropriately.

That said, documentation must be written with the reader in mind. In other words, a third person reading the documentation should be able to understand why the employer acted and should conclude that the employer’s action was reasonable under the circumstances.

Tips for Employer Conduct

Obviously, it’s best to avoid a complaint in the first place. Kaiser outlined some tips that will serve both to minimize the likelihood of a complaint and also to help your defense should a complaint arise:

• Be sure all employees are treated equally. A reasonable business practice is to step back and evaluate whether the employee is being treated in the same way that others are treated in similar circumstances. If two employees appear to be similarly situated but in fact are not, the employer may treat the two employees differently. However, facts demonstrating how the employees are not similarly situated should be documented. For example, two employees may each have accrued 10 absences. However, one employee may call in every time he is going to be absent and the other employee may not.
• Employees should know the rules. A fundamental component of reasonableness is for an employee to know what workplace conduct is prohibited. Kaiser confirmed &quotIt is helpful &quot although not required by law &quot to have an employee handbook&quot or other procedure manual explaining the rules. &quotThat handbook should be distributed and available to all of the employees,&quot Kaiser continued. Everyone who receives a copy of the handbook should sign an acknowledgement stating that employee has received the handbook, read it, and agreed to abide by its terms and conditions.

For more information on workplace investigations, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio/source/HAC/Effort/22.

Attorney Robert A. Kaiser is a member of the Employment and Labor practice group at Armstrong Teasdale representing emerging and mature businesses in labor and personnel-related disputes. As counsel to both public and private sector employers, including manufacturing companies, health care providers and governmental entities, Mr. Kaiser advocates in employment matters throughout the country involving discrimination and wrongful discharge.