Managers should be capable of addressing accusations of employment discrimination and harassment. Prompt, competent investigations and remedial action – where warranted – can preempt a lawsuit or help prove that the organization acted responsibly.
Once management has actual or constructive notice, it should investigate. Actual notice occurs when someone informs a manager of misconduct. Constructive notice occurs when a manager should have known of the misconduct.
Investigation should begin quickly – preferably within 24 hours of notice. Organizations should have standard procedures that they can implement swiftly.
Managers should tell informants that (1) someone will investigate, (2) there will be no retaliation against the informant, and (3) the informant’s identity will be kept as confidential as possible – albeit confidentiality is not guaranteed. The informant’s identity may be revealed during the process.
Management should limit the sharing of information on a need-to-know basis. Not all managers must be aware of the investigation. The investigation file should be kept separate from the personnel files so they are not accidently accessed in the normal course of business.
Unionized companies are subject to some special rules. “Weingarten rights” enable unionized workers to have a union representative present during an investigatory interview. A “Johnnie’s Poultry warning” informs unionized workers of the interview’s purpose, confirms that participation is voluntary, and states there will be no retaliation.
Attorney interviewers should provide all employee witnesses with an “Upjohn warning.” It states that the attorney represents the company – not the witness – and statements by the witness are not protected by the attorney-client privilege. (These three warnings derive their names from landmark cases.)
Warnings should be memorialized in writing. Witnesses should acknowledge the warnings by signing a receipt.
The employee handbook should contain clear policies about workplace investigations, examples of prohibited conduct, and notification procedures. Notice of misconduct should not be required only in writing because it may deter informants from coming forward. Policies should not differentiate between a “formal” and “informal” procedure. The organization should adopt a single coherent policy that can be adapted to unique circumstances.
When planning investigations, investigators should:
• inform managers, as necessary
• draft a preliminary timeline
• monitor contact between the complainant and accused to prevent retaliation
• suspend the auto-deletion of e-mails
• review personnel records to determine if there have been previous problems
• create a preliminary list of witnesses likely to have relevant information
• determine the order in which witnesses will be interviewed.
Interviewing subordinates before interviewing their supervisors minimizes the risk that subordinates’ testimony will be influenced. To obtain independent knowledge, the investigator should tell interviewees to keep the content of the interview confidential under penalty of discipline.
To maintain confidentiality, interview locations should be discreet. The timing in between them should be sufficient so that the witnesses are kept separate. Investigators should prepare an outline, but the questions should be open-ended to elicit information. Investigators should listen and observe.
Interviewers must have credibility. When an insider investigates, there is no out of pocket cost, and the person is more familiar with company policies and personnel. Workers, however, might not trust the company or its management. Thus, employees may be less than forthcoming. Also, the investigation may be time consuming, and an internal investigator may not have sufficient capabilities to perform it well. An external investigator has the advantage of greater expertise and independence. There is an out of pocket cost. Also, an external investigator will require some time to become familiar with the company’s policies and personnel.
Witnesses should review the notes produced as a result of the interview, make any necessary corrections, and initial them if they are accurate. Interviews should not be recorded. Investigations should be as thorough as possible. Investigators should maintain a chain of custody of evidence and examine the scene where the alleged conduct occurred.
After the investigation – when a final determination is reached – the investigator should draft a report. It should not use legal words (e.g., discrimination, harassment). Rather, it should note that there was a policy violation. Discipline may be appropriate. Afterwards, management should monitor to prevent retaliation. If necessary, management should re-distribute relevant handbook policies and train staff to comply with them.
About the Author: Bryan L. Berson, Esq. is an attorney and mediator at The Berson Firm, P.C., a commercial and civil law firm that handles estate administration and planning, real estate, commercial transactions, mediation, and commercial litigation. His e-mail is firstname.lastname@example.org. His phone number is (631) 517-1055. Connect with The Berson Firm on Facebook and Bryan L. Berson on LinkedIn. The firm’s website is www.bersonfirm.com.
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