3 Common Pitfalls in Workplace Investigations
Given the social climate in the 21st century, companies have made efforts to create inclusive workplace environments free from harassment, discrimination and bias. Nonetheless, many companies often find themselves dealing with employee complaints regarding these exact issues. When it comes to fulfilling its duty to investigate these types of complaints, employers often make some of these common mistakes.
- IGNORE IT
When an employee brings forth a complaint, the worst move for any employer is to do nothing. While everyone is aware that complaints should be handled in some way, not everyone is clear about whose responsibility it is to handle the complaint. Specifically with junior and middle level managers or supervisors, there is often some confusion about when a complaint is being made and whether the complaint needs to be escalated for investigation. Oftentimes, an employee will make a complaint without using any of the “buzzwords” to indicate that it involves a protected class or activity and the manager will either address the complaint themselves (often inadequately) or will simply do nothing. In such situations, the circumstances surrounding the complaint tend to get worse.
When an employer becomes aware of a complaint of harassment, discrimination or retaliation, it has a duty to investigate thoroughly and promptly. The second an agent of the employer, i.e. a manager or supervisor, becomes aware, the employer itself is deemed to be aware. It makes no difference whether the supervisor should have escalated the matter to Human Resources or higher management and decided not to do so. While some employers expect supervisors to handle relatively “minor” complaints themselves, without proper training, supervisors often fail to adequately resolve the issue.
Another common mistake a manager or supervisor will make is failing to take any action because the employee says they don’t want to “get anyone in trouble.” Again, the moment an agent of the employer knows about possible unlawful mistreatment, the employer must take steps to investigate and remedy the situation. Taking no action at all is almost never a viable option.
- GOSSIP ABOUT IT
Confidentiality in a workplace investigation is key! Oftentimes, strict confidentiality is not possible. The investigator will need to share the details of the complaint and the identity of the complainant with the accused and some witnesses. However, the investigator will make every effort to only share information that is relevant and necessary to be shared. Unfortunately, employees hardly ever stay silent. Gossiping can make the complainant’s environment difficult to endure, leading the employer straight into further complaints of retaliation and hostile work environment. This is particularly true when managers engage in the gossip. When managers discuss among themselves about an employee’s complaint, the employee’s reputation starts to become questionable. This can apply equally to witnesses in the investigation. In any investigation, confidentiality must be established with every manager or employee who participates in the process.
- NEVER FORGET IT
Once an investigation is complete and remedial actions have been taken, everyone wants to move forward. However, employers sometimes struggle with how to move forward when it comes to the complainant. To be fair, employees who have made complaints often use this to their own advantage. Imagine a manager of a department with an employee who has filed a complaint for sexual harassment, for example. Aside from the results of the investigation itself, the manager is not fearful of how they interact with this employee. Out of fear, the manager starts to treat the employee differently. Whenever the manager needs to discuss performance with this employee, another manager is present but this doesn’t happen with other employees. The manager often makes small talk with their employees but keeps their interactions with the complainant to the bare minimum. While these actions may seem like a good idea for the manager to protect themself from another complaint, the manager’s behavior could be viewed as a form of unlawful retaliation and the company could be held liable.
In sum, handling employee complaints of unlawful conduct can be tricky. Employers are encouraged to regularly train managers and supervisors. Finally, when in doubt, employers should seek counsel.