Workplace investigations have become more important for reasons of productivity, personnel management, and litigation avoidance. Moreover, the range of matters that are the subject of investigations has become broader, and there is greater potential liability for mistakes during investigations. Thus, it is in every employer’s best interest to not only be able to recognize when it is time to conduct an investigation but also to know how to conduct an effective and efficient investigation.
This three-part series will explore pre-investigation considerations that lay the foundation for a successful investigation, general guidelines for preparing for and conducting effective investigations, and post-investigation steps. Although this series will address general guidelines and tips relating to effective workplace investigations, it is neither a comprehensive nor definitive guide for conducting an investigation. If you have questions about how to proceed with a particular investigation, you should confer with senior management, human resources professionals, compliance officers, and/or in-house or outside counsel.
Part 1: Before the Investigation—Putting Your Company’s Policy House in Order
Any workplace investigation is only as good as the tools you have available to you. Some of the most important tools for an effective investigation are your company’s personnel policies. Many of these policies are quite obvious, and many companies already have them. Unfortunately, the need for other policies only becomes apparent once an investigation is already underway—when it is often too late to adopt them.
EEO and Anti-Harassment Policies. Nearly every workplace should have policies prohibiting harassment or discrimination of any kind. These policies should include easily understandable complaint mechanisms, and they should assure all employees that they will not suffer any form of retaliation for complaining about discrimination or harassment or for cooperating in an investigation. These policies should also provide that the responsibility for maintaining a workplace free from discrimination and harassment rests with all employees and that all employees are therefore expected to report any discrimination or harassment that they experience or witness.
Employee Conduct and Discipline Policies. Employee conduct and discipline policies are also important in today’s workplace, and the majority of companies with written policies have these types of discipline policies. Companies should consider including refusal to cooperate with a workplace investigation as conduct that can subject an employee to possible discipline. Companies should also make sure they include language in their policies expressly stating that retaliation against another employee because of his or her reporting of discrimination or harassment is prohibited and a cause for discipline.
Computer Use Policies. Electronic data can provide important information, especially in the course of a workplace investigation. Companies need to be sure that they are able to access such electronic data when they need it. Employees should understand that the company may, at any time, look at their internet use history and any files on their computers. Indeed, the key to effective computer use policies is the elimination of any expectation your employees have that what they do on their computer at work is private. Employers must, however, be mindful of laws that govern electronic communications, such as the Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2511 (the Act). The Act provides criminal and civil penalties for intentionally intercepting or trying to intercept any electronic communication, which might include employees’ e-mails (it does not extend to the act of casually reading an e-mail on the sender’s or receiver’s computer screen). Acquiring electronic communications such as e-mail may be unlawful only when the communication is being transmitted, not when it is stored electronically. To that end, companies should ensure that they have the policies in place to allow them both to look at e-mails already sent but also to intercept e-mails that are being sent as the investigation is ongoing. Because the prohibition against intercepting electronic communications does not apply when real or implied consent is obtained, employers may be able to protect themselves from violating the law if they give clear notice—preferably written and signed by each employee—that e-mails may be intercepted.
In addition to having effective and lawful policies, companies should also consider other pre-investigation measures that lay the foundation for successful investigations.
Maintain a Culture that Encourages Complaints and Reporting. Some of the actions an employer can take to promote a corporate culture that encourages the reporting of complaints include:
conducting periodic training sessions for managers and employees regarding their obligation to report—not overlook, condone, or tolerate—improper conduct;
educating managers and supervisors that their instinctive reaction to a complaint, even if about them, must be “thank you for telling me”;
giving explicit assurances of non-retaliation for making a complaint;
conducting periodic, documented follow-up checks with employees who have asserted complaints to ensure that there has not been retaliation; and
providing a hotline or offering anonymous reporting procedures.
Assess Intake Procedures. Ensure that all employees are well informed of where the complaint process begins. This is accomplished through communicating a policy that clearly identifies the available avenues for initiating complaints and gives each reported matter timely attention.
Response Time is Key. Complaints of wrongdoing should be investigated promptly. The company’s anti-harassment policy should designate at least two people to whom employees can report complaints (e.g., immediate supervisor and any HR representative). Every supervisor should be trained to react sensitively to complaints and to bring complaints to the attention of the human resources department or other appropriate personnel immediately.
Do Not Substitute Rigid Policies and Process For Good Common Sense. Many employees do not report harassment incidents to supervisors or to human resources—often they only discuss such incidents with co-workers. If you hear rumors of harassment of any type, you should investigate immediately. Do not wait until a formal complaint is made.
Take All Complaints Seriously. One common mistake supervisors make is to dismiss employee complaints because they seem silly or trivial. Even if an employee seems overly sensitive or is a chronic complainer, you must demonstrate that you are listening to the employee’s complaints and that the company will not tolerate harassment or other inappropriate behavior.
Don’t Ignore The Possibility of The Simple Solution. If a complaint sounds like hurt feelings or a simple lack of information or misunderstanding, try to resolve the situation by lending a sympathetic ear. Provide information if you have it and believe that it may clarify the issues for the concerned employee, and discuss the possibility that an unintentional and unbiased communication failure likely occurred.
Companies who have their policy house in order are better positioned to conduct a timely and effective investigation and defend themselves in any litigation that may arise. Additionally, companies that create a culture that encourages the reporting of complaints, and companies that take all complaints seriously, are more likely to be able to rectify any potential problems before they snowball. If you have questions about any of your company’s existing personnel policies or would like assistance in developing new policies, contact the Ogletree Deakins attorney with whom you normally work.
Stay tuned for Part II of the series: Preparing for and Conducting Effective Workplace Investigations.
Ashlee M. Bekish and Ashley A. Wenger are associates in the Minneapolis office of Ogletree Deakins.