By Susan Hartmus Hiser
March 4, 2010
Workforce diversification continues to present challenges for employers in managing employee relations. How employers respond to and investigate internal complaints of harassment, discrimination and other misconduct allegations can have a serious impact both legally and practically, affecting employee morale, productivity and workplace culture. Listed below are 10 common mistakes employers make in responding to and investigating employee complaints.
Mistake #1: Not thinking through the implications of who should conduct the investigation. Have two people present in the investigation interviews. While it is advisable to have the assistance of counsel in conducting the investigation, you should think carefully about the sole use of outside counsel, as it may disqualify them from representing you in subsequent litigation. Although employees may tend to not be as forthcoming as they might be with a familiar person, they may feel that someone less biased is getting involved.
Mistake #2: Accepting a complaining employee’s characterization of an incident as discriminatory without clarifying up front whether the incident really involves sex, race, or other discrimination. Start by asking yourself whether you have actually received a complaint of some form of illegal discrimination. Employees often use the nomenclature of discrimination to address a range of perceived ills. What may actually be no more than a personality conflict may be incorrectly labeled as some form of illegal discrimination by an angry employee.
Mistake #3: Delaying the commencement of an investigation or taking too long to complete an investigation. Do not delay in starting an investigation. Discipline too long after serious misconduct is discovered suggests the problem is either not important, the evidence is not compelling, or it took that long to “cook the books.” In harassment investigations, delay connotes indifference and might actually subject the complaining employee to further harassment. Yet do not be so hasty that you conduct a shoddy investigation, so balance is the key.
Mistake #4: Failing to take complaints of discrimination seriously - particularly if the complaining employee has a history of complaints or is generally regarded as a disgruntled employee or a troublemaker. You must take each complaint seriously, regardless of how frivolous it appears to be. You do not want to put the company in the position of having to respond later to claims of “no one listened to me or cared about what I had to say.”
Mistake #5: Failing to conduct an investigation when the employee says that he or she wants to make the employer aware of a concern, but does not want anything done or said about it at this time. Go ahead with a thorough investigation; you cannot simply listen to concerns and not act. This is required when dealing with harassment complaints and very strongly recommended when dealing with discrimination complaints. When an employee tells you of a problem, but refuses to cooperate during the investigation, you still need to go forward as best you can, noting the employee’s refusal.
Mistake #6: Promising the complaining employee that the employer will keep the complaint confidential. Once a complaint is made, an employer has an obligation to investigate. You cannot realistically investigate a complaint if the complaint is kept confidential. Tell employees that investigations will be conducted discreetly, but certain disclosures have to be made in order to investigate.
Mistake #7: Not conducting a sufficiently thorough investigation, including interviews of all parties - or not talking to all witnesses identified by the complaining employee. In interviewing a complaining party, you should start by asking for an explanation of the concerns, using general questions that ask for a narrative response. After you have an overview, go back and review each incident or issue, moving to specific questions. Be careful to distinguish between what the employee knows versus what he thinks he knows. Ask for names and involvement of anyone witnessing alleged incidents and also for anyone who the employee believes has been subjected to the same or similar conduct. In interviewing the accused, first tell him the interview’s purpose and that a named individual has made a report. Ask general questions about what conduct the employee has engaged in with the complaining party. Then, go back and tell the employee each of the issues or facts that have caused the investigation, getting a specific response. Get names of anyone who the employee believes has information about the allegations. Follow these same guidelines for any other witnesses who need to be interviewed. If necessary, follow up with any employees already interviewed if new information is learned.
Mistake #8: Not asking the complaining party to identify others not in their protected classification who have been treated differently. In addition, ask the complaining party exactly what he or she wants the company to do. Do not suggest possible remedies. Make sure that you understand the effect of the conduct on the complaining party. Depending on the circumstances, something as simple as an apology may resolve the situation.
Mistake #9: Failing to document the investigation in an appropriate manner. Prepare a report summarizing the results of the investigation and setting forth the conclusions reached. The report should discuss any credibility determinations, discipline to be imposed, the reasons for the discipline and should be reviewed by counsel before it is finalized.
Mistake #10: Failing to monitor your workforce and seek out potential discriminatory disparities instead of waiting for a complaint to be lodged. If you know you have a problem, meet with employees and make sure they understand such conduct will result in disciplinary action if it continues. Don’t assume that because you work in a professional organization with intelligent, educated employees that this sort of activity is not a possibility. As managers and HR personnel, you not only represent your companies, in the eyes of the law, you are the company - and the things you say and do will bind your company.
Susan Hartmus Hiser is a shareholder at Vercruysse Murray & Calzone law firm, where she represents employers in all aspects of employment law. She frequently conducts management training, and assists clients in workplace investigations and in responding to employee complaints.