HR CSI: When Should You Investigate?

Segal, a partner in the Philadelphia office of the WolfBlock law firm, offered his tips at a recent SHRM conference.

Here’s when to investigate, Segal says.

1. Employee brings complaint directly to HR. This is ideal; HR is in on the situation from the beginning.

2. Manager reports a complaint made to him or her by employee. This is the next best thing. Unfortunately, many complaints don’t make it this far. Supervisors tend not to report for three reasons:

• They are honoring a request for confidentiality from the employee. If an employee approaches the supervisor and says, “I want to talk to you in confidence as a friend,” the supervisor will often honor that request.
• The employee requested no action be taken.
• The supervisor or manager thinks the claim doesn’t have merit.

Supervisors and managers think they are supposed to resolve problems, and that it reflects on their management skills if they have to report a problem. But in these cases, we want managers to report, not resolve, says Segal.

So tell your supervisors in writing that they are required to report these situations to you, says Segal. And that holds true even if the employee asks for it to be kept confidential, even if the employee says don’t act, and even if the supervisor thinks the claim doesn’t have merit. The decision of whether to investigate is yours, not the manager’s.

3. Anonymous complaint. Managers often think there’s nothing they can do with an anonymous complaint, but you should act, Segal says. For example, you can send a memo out that notes that there has been a complaint, reiterating the company’s position, and reminding people of the complaint procedure. “If you know who did this,” you can say, “please report so we can take disciplinary action.”

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4.
Constructive discharge allegations. 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 claim in the making.

Everyone thinks it’s too late to do something, but it’s not, says Segal. You may want to say, “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 and made a constructive discharge claim unlikely, Segal says. Even if the person does leave, you have an obligation to investigate, Segal notes.

5. Complaint upon involuntary termination. What 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.

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6.
Complaint filed with administrative agency. 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.

7. Apparent pattern that you or others observe. 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?

Segal offers a tip concerning communications: When communicating about complaints, watch out for e-mails, he says. For example, you don’t want to see something like: “Can you believe that Amy complained again?” That’s going to come back to cause trouble in court. Tell your supervisors to call you, Segal suggests.

In tomorrow’s Advisor, we’ll give you Segal’s take on what to do when a complaining employee asks for no investigation—a suggestion that might surprise you—and notice of a timely BLR® audio conference on investigations.