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Decisions by the Supreme Court provide compelling reasons for
employers to perform investigations.
A good investigation can protect your organization, while a
bad one can become an employee relations fiasco.
If you follow the proper process, your investigations should
result in the “right” decisions.
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At some point, every manager or HR
professional will face a situation that requires investigation
before any employment action can be taken. Typically, the
investigation will be necessary to respond to complaints or
suspicions of workplace misconduct, rule or policy violations, or
even criminal acts. Many HR professionals, however, feel unprepared
to perform these investigations because they do not have a process
for conducting investigations and for making decisions based on the
results. Performed systematically, investigations can prevent
potential morale problems, resolve efficiency problems, and prevent
legal and financial losses. In short, a good investigation can help
you make sound employment decisions. However, poorly conducted
internal investigations often result in low morale, negative public
relations, and litigation. Therefore, you should have a
well-defined process to specify the circumstances in which you will
conduct investigations and to help you make confident, fair
decisions.
The first issues
to consider are why and when you should conduct an investigation.
Some situations, such as allegations of sexual harassment, clearly
warrant an investigation. Moreover, the Supreme Court’s rulings
have reinforced this responsibility of employers. In Burlington
Industries v. Ellerth, 524 U.S. 775 (1998) and Faragher v. City of
Boca Raton, 524 U.S. 742 (1998), the Court found that employers have
a duty both to prevent sexual harassment and to respond to and
investigate any complaints. Therefore, employers that do not
conduct thorough investigations could be liable for harassment.
Even when there
is no clear legal requirement for an investigation, investigations
make sense whenever there are complaints of workplace problems,
including rule or policy violations (such as violating the safety
policy), misconduct (such as insubordination), or criminal acts
(such as stealing). Management also should be prepared to initiate
investigations, even without a formal complaint, when there are
rumors or suspicions of rule violations or wrongdoing.
[Creating HR Policies or Employee Handbook?]
The consequences
of not performing an adequate investigation can be severe. Many
employees file lawsuits alleging discrimination, harassment, or
wrongful termination as the result of decisions based on inadequate
investigations. In fact, both the complaining party and the accused
wrongdoer may sue if an investigation was conducted in a shoddy
manner or if a decision appears to be unfounded. Significantly,
courts tend to punish employers that do not conduct thorough
investigations. In addition, employee morale may suffer if
employment decisions appear unfair or arbitrary because
investigations are not thorough or objective. Most employees value
fairness and will respect their employers’ decisions if they are
based on a structured investigative process.
One way to keep
the goals of an investigative process in focus is to visualize how
your organization’s procedures and decisions might be viewed in an
outside forum, such as a local newspaper or court. You should be
confident that your investigative process and decision would be
considered fair if held up to public scrutiny.
These five
elements should be part of every investigative process:
1. A Written
Policy. This policy is
management’s opportunity to explain the investigative process and
its purpose. Generally, the purpose of an investigation is to
discover the facts necessary to make a decision about a particular
employment issue. A written policy also tells employees what to
expect from the process and emphasizes its fairness and
objectiveness. The policy should outline steps for initiating the
process, the actual investigation (including fact finding and
interviewing witnesses), proper documentation, the final decision,
and the communication of the results (see “Making and Communicating
Decisions,” below). The policy does not have to be a separate one.
Rather, most employers incorporate an investigatory procedure into
their policy on the handling of complaints, disputes, or grievances.
2.
A Trained and Objective Investigator. The qualifications and
demeanor of the person conducting the investigation will have a
major influence on everyone’s perception of fairness. Ideally, the
person should be specially trained and experienced in human
relations, employment law, and conflict resolution. Many employers
use their internal HR professionals in this role. However, if a
person with these qualifications is not available internally, you
should use an outside expert. Likewise, an outside investigator may
be appropriate if the investigation is particularly sensitive or
legally complex.
3.
Timely Process. A commitment to complete the investigation
in a timely manner reinforces the perception of fairness.
Therefore, investigations should be completed as soon as possible
after a complaint is filed, the misconduct is observed, or the
alleged incident occurs. Normally, no more than a few days should
elapse between steps in the process; and ideally, the investigation
should be completed within five to ten days. Some investigations,
such as those involving complicated issues like harassment or theft,
may take longer. In those cases, management can extend the time
needed by placing the appropriate parties on special leave pending
an outcome.
4. Careful
Fact Finding. The
investigator should begin by gathering as many facts as possible
about the problem, either by interviewing the complaining party, or
if no one made a complaint, by interviewing people who may be
involved or who may have witnessed the problem. As a general rule,
you should talk to any person who may have information that would
either prove or disprove that the alleged conduct occurred.
Questions should be probing and open-ended and, to preserve
confidentiality, should focus only on the details that particular
person should know. In addition, the tone of each interview should
be professional, and everyone interviewed should know the
organization will not retaliate against anyone who participates in
the investigation. Throughout the process, the investigator should
be as impartial as possible and not comment on any aspect of the
investigation.
5. Documented
Results. All steps in the
process should be recorded and documented in writing. Written
records, properly compiled, help everyone’s memory and can be
invaluable in demonstrating and supporting the fairness of the
investigation and decisionmaking process, both to employees and, if
necessary, in court.
Once the
investigation is completed, you should evaluate the evidence and
decide whether it appears likely that the alleged misconduct or
violation of policy occurred and what action should be taken. In
making a final determination, you should point to as many facts as
possible to support the decision and document each reason for the
decision. If there is no corroborating evidence (for example, if
you are faced with two people telling conflicting stories), you
still may make a decision based on the credibility of the parties
involved. For example, contradictory statements by one person, or
changes in another’s story, may make a conclusion possible.
However, there
may be times when the evidence is inconclusive and you cannot reach
a determination. In these cases, you should not take action
against either party. Placing blame where the truth cannot be
determined may result in claims of wrongful discharge, defamation,
infliction of emotional distress, or retaliation. Instead, you
should explain to the parties why the evidence was inconclusive and
give anyone involved the opportunity to submit additional
information and appeal the decision. An appeals step lends
additional fairness and impartiality.
Most managers and HR professionals
are concerned about making the “perfect” decision. However, neither
your employees nor the courts expect the decision to be perfect.
Rather, they require the decision to be fair and based on a thorough
investigation. This point is illustrated by the tendency of the
courts not to second-guess employer actions, even when later proven
wrong, if management acted fairly and in good faith in making the
decision. In other words, management decisions are not normally
held to the strict rules of criminal court proceedings; you do not
have to have evidence beyond “a reasonable doubt” in order to take
action.
The last step in
the process is the communication of the decision to the appropriate
parties. The decision should be disseminated on a “need to know”
basis to prevent claims that statements or comments about the
investigation are defamatory. This communication also gives you the
chance to underscore the fairness of the process and the
reasonableness of the decision.
Fairness and “How it Looks”
Although
internal investigations can be difficult and time-consuming, they
should help ensure that your disciplinary decisions are based on
fact and are perceived as being fair. Focusing on “how it will
look” to outsiders will lead to a process that serves everyone’s
interests well. Your employees, outside observers, and even the
courts tend to value the fairness of your dealings more highly than
your being technically or legally “right.” Therefore, you always
need to show that your investigation process was followed in good
faith to reach a fair decision based on what was known at the time.
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Personnel
Policy Service, Inc.
