Every Company gets employee complaints from time to time on any number of topics. This article focuses on investigation of discrimination complaints, whether internal or from an outside Agency, like the EEOC. These techniques, however, may be used in any employee complaint investigation. And, large or small, every employer should promise a “timely, thorough and fair” investigation. This information will assist you to fulfill that promise.
- a.The Lawyer’s Role
In discrimination complaints, it is very important to know the law, e.g. what does the employee need to prove to win their case? In an age discrimination complaint, for example, we know the employee must be over 40, been treated differently than similarly situated younger employees, and suffer an adverse action “because of” the employee’s age. So, it is helpful to have an experienced employment lawyer advise you at every step of your investigation.
But, should your lawyer conduct the investigation? They could of course. However, Courts have held that attorney investigations may not be protected by the attorney work product or attorney-client privilege. This means that what your lawyer told a witness, or what a witness told the lawyer, may be discovered by the other side. That does not hold true if litigation is imminent, threatened or already filed. I recommend that, if no formal charge is filed, and it is an employee complaining for the first time, your HR or office manager conduct the investigation with guidance from an experienced employment attorney.
- Never promise confidentiality to the Complainant or witnesses, because there may be a time when you will have to reveal names and what they said or disclose facts that make it clear who told them to you.
- Absolutely start and end every conversation with a guarantee that the employee will not be retaliated against in any way for giving truthful testimony.
- Always document each step of the investigation and witness testimony in detail.
- Actively listen to the employee or witness and be respectful in your demeanor.
- Take detailed notes of every interview.
- Discuss the allegations with the accused. Remember, there are generally two sides to the story. Stay neutral: you are fact-finding.
- Assess credibility of individual persons and statements
- i. Plausibility
- ii. Source of information
iii. Memory and detail provided
iv. Corroborating and/or conflicting information
viii. Prior incidents same/similar behavior
ix. Motive to falsify
8. Conduct follow-up interviews if you find discrepancies in the witness statement.
9. Once you feel you have enough evidence to reach a resolution, review your policies. Was there a violation? If so, what are the potential actions to be taken?
10. In consultation with your attorney, determine if laws were broken putting the Company in jeopardy.
11. Always get back to the complainant and the accused no matter what you have decided. Many employee discrimination charges can be avoided by letting the complainant know the results of your investigation, even if they don’t agree.
12. Draft a report or at least document your conclusions and put it in the appropriate file.
13. Take effective remedial action up to and including termination.
14. Decide if you need workplace training of employees or your management team.
Conducting a proper investigation takes planning and the willingness to do it right and take it seriously. If you don’t, I guarantee you that the EEOC and your local Civil Rights Agency will.
*This article was developed from a workplace investigations seminar that Thom Cope firstname.lastname@example.org conducted this year with Teresita Flores email@example.com