As an employer, at some point you will receive a workplace complaint about alleged misconduct. Sometimes complaints of misconduct will come from another employee. But they can also come from a vendor, customer, client, subcontractor, or an anonymous report.
In this situation, you may need to perform an internal workplace investigation. There are some common workplace investigation mistakes that you will want to avoid.
No internal investigation will be perfect, but if you avoid common mistakes and follow best practices, it will decrease the likelihood of the company being involved in costly and time-consuming litigation.
By having a company policy with the proper investigative process in place, you can also avoid a situation where someone is seriously hurt, or inappropriate behavior continues. Here are some common mistakes that employers make in conducting workplace investigations that you will want to avoid.
We are human, and humans have bias. Bias can ruin an investigation, which should be impartial.
When there is a biased investigator, whose only focus is on confirming one possible outcome (confirmation bias), the investigation is tainted. Without a fair investigation, you will not reach a proper conclusion that will protect your company from legal liability and uncover what really happened.
When you are conducting an investigation, you need to figure out exactly what happened. This requires you to uncover all relevant facts surrounding the accuser’s (also called the complainant’s) allegations.
To do this, you need to review all applicable evidence, such as documents, emails, and phone logs. You will also want to interview key witnesses that may have first-hand knowledge of what occurred.
Sometimes, you will need to conduct multiple interviews with the same person. If you don’t uncover all the relevant facts, your investigation could be incorrect, or incomplete, opening your company up to legal liability, or endangering your employees.
It’s important to get all sides of the story. Many companies make the mistake of not interviewing the accused or the accuser. Typically, the accuser will be interviewed among the first interviewees, and the employee under investigation, or the accused, will be interviewed among the last.
It’s important to ensure your investigation is well balanced, and that you give each person an opportunity to tell their side of the story, so your investigation is thorough and fair.
Most companies have a written investigation policy that needs to be followed. It can be problematic if your policy is too detailed, or if it’s outdated and doesn’t get followed. A poorly written policy is worse than no policy.
Make sure that you follow your investigation policy. If it needs updating, contact an employment lawyer to audit and update the policy to ensure it’s legally compliant.
Some circumstances will call for an investigation, but in other situations it can be simple to decide that an investigation is unnecessary. When it is difficult to determine when an investigation is necessary, an updated investigation policy will give you useful parameters.
If you are unsure whether an investigation is necessary, contact your employment law attorney to receive legal advice. It’s better to be safe than sorry, because failing to investigate a proper complaint, or ignoring one, can be extremely detrimental to a company and its employees.
Retaliating against the accuser is a huge mistake for you as an employer. Many states allow an employee to sue their employer for retaliation if this occurs. You will want to avoid taking adverse action against an accuser unless you have a legitimate, non-discriminatory reason to, and you’ve cleared the action with your employment law attorney.
Retaliation claims can be filed if an employee is complaining of discriminatory treatment in the workplace, and the company takes an adverse action against the employee shortly after the complaint was made, or for the employee’s participation in the complaint process.
Title VII of the Civil Rights Act of 1964 (Title VII) is a federal employment law that covers employers with 15 or more employees and allows for retaliation claims associated with a claim of discrimination based on a protected class.
If you are a Virginia employer, Virginia has a general retaliation statute that allows employees to sue their employers and seek attorneys’ fees, Virginia Code Section 40.1-27.3. You will want to avoid this huge liability trap for employers and not take adverse action against your employees that file complaints or participate in an investigation.
It is important to separate the accuser and the accused on the worksite, to protect the accuser. It also prevents tensions from further boiling over.
Many companies will place the accused on paid leave while the investigation is ongoing. You will want to be mindful of how you have conducted effective workplace investigations in the past. Ensure you are taking all steps to protect the safety and reputation of any employees involved.
You should never use aggressive interview tactics. Keep in mind the phrase, “honey draws more flies than vinegar.” The same is true for investigations. The more uncomfortable you make the interviewee, the less information you are likely to obtain from them.
While you will want to have an impartial investigator question your witnesses, be mindful of treating interviewees with respect, dignity, and professionalism.
Confidentiality breaches can completely ruin an investigation. You will want to ensure that witnesses aren’t swapping stories with each other, because it will taint the facts. It is important to request that interviewees keep the investigation confidential to maintain the integrity of the process.
Justice delayed is justice denied. You will want to keep the investigation process going as efficiently as possible to avoid any unnecessary problems that can result from a slow investigation. The speed of an investigation is especially critical when there are serious allegations of wrongdoing or criminal behavior.
Ensure that the accused is removed from the workplace as quickly as necessary to prevent further possible harm from occurring. The number one concern you should always have is a safe workplace for your staff.
An often-overlooked mistake is overcomplicating the investigation. If you don’t do investigations often, it can be difficult to know how many people to talk to, how long to conduct the investigation for, and what level of formality the investigation should take on.
Many times, a quick and simple investigation is all that is needed. If you are unsure of how to proceed, consulting with an experienced employment law firm, like The Lipp Law Firm, can give you the clarity and direction you need.
When conducting an internal investigation, it’s critical to avoid these potential mistakes. Investigations can be straightforward, fast, and organized, by having experienced legal counsel to guide you.
In addition to employee safety, conducting a proper investigation will keep your company out of court, and save your legal resources. There’s nothing more taxing than spending years (yes, years!) involved in an employment lawsuit, or under investigation by the government for failing to follow labor laws.
In the end, ensuring your company is compliant with employment law will save you time, money, and the reputation of your business.
If you are looking for an experienced employment lawyer to help with your workplace investigation in DC, Maryland, or Virginia, our firm has a deep bench of highly experienced employment lawyers that have conducted countless workplace investigations across multiple industries.
Our multiple 5-star client reviews describe us as responsive, knowledgeable, thorough, understanding, and professional. Contact The Lipp Law Firm today to receive the employment law support you need.
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