Be A Super Sleuth: Laying the Framework for Effective Workplace Investigations

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

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.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.