Tillman Coffey of Fisher & Phillips LLP posed an interesting question at the recent SHRM-Atlanta Conference, “How Would This Look in Court?” Tillman’s presentation focused specifically on witness depositions, something corporate leaders, especially human resource professionals, participate in. His presentation was engaging, humorous, and educational. In the entertaining video Fisher & Phillips created to illustrate how challenging depositions can be, there was one question asked of the “HR Manager” that stood out for me. The question was, “What type of training have you personally had on how to conduct a workplace sexual harassment investigation?” Conducting a workplace investigation is serious business and shouldn’t be taken lightly. Organizations should ensure personnel charged with leading investigations receive the proper training in order to be confident and credible in the undertaking.
As an overview of the phases and nuances to be considered, here are some suggested best practices to include in an investigation strategy:
Treat the Allegations Seriously
As a general rule, the employer should take immediate steps any time an employee makes an informal or formal complaint, or when a manager witnesses or has reason to suspect employee misconduct that violates workplace policies. These steps could include:
- Develop an investigation strategy, including designing the appropriate questions
- Protect those involved from workplace disruption
- Attempt to resolve the alleged conflict as quickly as possible
As demonstrated by Tillman’s video "spoof," there are also a number of things an employer should not do when an employee complains:
- Joke about the situation
- Take sides or give personal opinions
- Fire the complainer
- Discuss the complaint with others who are not involved
Choose the Right Investigator
The Society for Human Resource Management (SHRM) defines the hallmarks of the "right" investigator as someone with the right level of experience, neutrality and objectivity. The HR manager is often tapped to conduct an investigation because of the nature of the position, the ability to remain neutral and strong competencies in the areas of interpersonal skills. However, this isn’t a "given." In some situations there could be a disadvantage to HR taking on this role if there has been no relevant training, or there is a possibility the employee will view HR as being too closely aligned with management.
Depending on the circumstances and the individuals involved, there are other options for assigning an investigation leader: internal security personnel, outside HR consultant, and in-house or outside legal counsel.
Even when the decision is made to not have legal counsel take the lead on the investigation, it is probably worth the investment to work with counsel to outline the legal issues associated in the investigation. This conversation may involve exploring topics such as:
- Employee perceived or legal rights for privacy
- Guidance issued by the Equal Employment Opportunity Commission (EEOC) to ensure proper steps are taken in cases involving alleged harassment
- Dispute resolution terms included in Collective Bargaining Agreements
- Management of relevant documents to the investigation
- Process for coordination with internal and external media outlets
Begin the investigation process by meeting with the employee who brought the complaint forward and then follow up by meeting with the alleged wrongdoer and all witnesses identified by either party.
- Allow each individual the opportunity to tell their story without interruption
- Take detailed notes; document facts, not opinions or conclusions
- Obtain relevant documentation
- Maintain confidentiality – only disclose information on a "need to know" basis
- Advise parties involved to keep information about the investigation confidential
Don’t Get Bogged Down
The investigator should stay in touch with both parties throughout the investigation to let them know things are still proceeding. Often the investigator is faced with a "he said/she said" dilemma which can sends the process in circles. The law firm of Ford & Harrison suggests assessing the credibility of witnesses based on these factors to aid in making a judgment as to whether the events happened as described:
Demeanor, Consistency, Chronology, Corroboration, Plausibility, History and Motivation
Complete the Investigation
After gathering the facts, the investigator will review the information and make a credible determination based on a "preponderance of the evidence." Depending on the circumstances the employer may request a written report or a verbal debrief. Be prepared to discuss investigation methods, conclusions and recommendations, as appropriate.
If the investigator concludes improper conduct did occur, disciplinary action must be determined. This usually is the responsibility of decision-makers on the leadership team, including HR. Once the action is determined, the employee who filed the complaint should be advised of the corrective action that will be taken.
Naturally, the employee accused of wrong-doing will be advised of the results of the investigation and the plan for corrective action to be taken. The investigator keeps the conversation brief, summarizing the findings along with next steps. It’s also important to remind the employee that the findings were based on what is and is not acceptable workplace behavior.
If the investigator concludes there were no findings of misconduct, the discussion with the complainant will focus on the employer’s commitment to continue to provide a respectful, harassment- and retaliation-free workplace environment. The meeting with the accused employee will focus on the fact that there were no findings of wrong doing and that retaliation will not be tolerated, and may be cause for further investigation.
In most situations, documentation of interviews and other oral communications conducted during the investigation will be summarized in writing, and signed by the respective parties to confirm the facts. Legal counsel will advise HR about what level of documentation is appropriate for the investigation. Maintenance of any investigation documentation should be separate from the personnel files of the individuals involved.
Obviously, I’m an HR/OD Consultant, not an attorney, so none of this information is presented as legal advice. The purpose is to draw attention to key protocols to be considered when planning to conduct a workplace investigation. The point Mr. Coffey made in his presentation was to be aware and sensitive to the fact that seemingly routine HR issues often lead to litigation and most often they look different in court than they did in the office. If "people issues" surface in your organization, I hope these highlights will be helpful in determining your strategy.
As always, I welcome your comments to my posting; please click below. If you found this article interesting and helpful, I’m very happy for you to pass it along to others. Have a great week.
This article was written by Deborah A. King, SPHR, CEO and Sr. Organization Effectiveness Consultant with Evolution Management, Inc. Debbie and her team are ready to assist with the design and implementation of HR and OD initiatives. Contact us for more information; www.evolutionmgt.com; 770.587.9032.