When an employee brings an internal complaint to management’s attention before filing a charge or lawsuit, employers have the unique opportunity to head off costly litigation by conducting a thorough investigation and, when necessary, taking appropriate corrective action.
Unfortunately, too many employers make the costly mistake of not taking full advantage of this opportunity by conducting a shoddy investigation.
In no particular order, below are the top 10 tips for employers when an employee brings an internal complaint to management’s attention.
- Assign the investigation to the “right” person.
Using an outside person with no particular ties or preconceived notions about the persons being interviewed or allegations raised will give credibility to your investigation and its findings. Companies tend to have their “own people” (human resources or a member of upper management) investigate internal claims. Cost savings is usually the number one reason companies prefer to have their own people conduct an investigation. Do not be shortsighted. Remember, upper management and your human resources personnel are still employees themselves. They have their own loyalties and their own biases toward other employees of the company which may skew your investigation.
Using an independent and neutral third party to investigate the matter will save you money down the road when litigation is either avoided entirely, or your investigation proves to significantly limit your liability.
- Interview the right witnesses.
Names provided by the complaining employee or alleged wrongdoer are your starting point, not your end point. Never limit your investigation to just the complaining employee, the alleged wrongdoer and the names of possible witnesses provided by each. Think outside the box and consider interviewing others 1) who worked the same hours as the parties, 2) who report to the parties involved or 3) whose work stations are in close proximity to the parties involved.
- Expand your investigation when necessary.
During an interview, a witness may disclose different workplace concerns than those raised by your complaining employee. Tunnel vision will be costly. Once you learn of a possible workplace concern, you have an obligation to investigate it.
- Remember your goal.
You should have one goal when conducting an investigation and one goal only: to discover what actually occurred. Wanting to prove or disprove that something occurred will skew your view of the witnesses, the parties and the information provided. Stay focused on fact finding.
- Consider all relevant documents.
Any investigation of wrongdoing should start with reviewing the company’s internal policies and practices regarding the event in question (e.g., code of conduct policy, anti-discrimination policy, progressive discipline policy, etc.). Most likely, whatever the complained of conduct is, it can be tied to some internal policy or practice which has allegedly been violated. Make sure you also ask about and review all written communications (social media posts, emails and text messages) between the parties and even potential witnesses.
- Do not show your cards.
As the investigator, your role is to uncover information in the possession of others. Your job is to ask questions, not answer questions or provide information. Sharing information with a witness may inadvertently lead the witness and influence their perspective.
- Do not allow witnesses to share information.
Every person being interviewed should agree to keep the contents of your interview confidential. Most investigations take more than one day. An employee who has not yet been interviewed, but learns in advance what questions are being asked and what answers were provided, may end up copying responses or being influenced by what was already said. This will compromise the integrity of your investigation.
- Communicate your findings to the complaining employee.
While there is no legal requirement that you share your findings with the complaining employee, it is just good practice to do so and could even be just what stops an employee from filing a lawsuit. While details do not need to be shared, a complaining employee should be told in summary what your conclusion is and whether any steps are being taken to address their concerns. Employees who feel they have been heard and taken seriously are less likely to proceed with litigation.
- Follow up after your investigation is complete.
If any wrongdoing is discovered, remedial action should be recommended and taken. Afterward, remember to follow up with the complaining employee! Make sure the remedial action taken actually resolved the problem. If no wrongdoing occurred, it is still wise to circle back with the complaining employee and find out how they are doing and if they have experienced any new concerns. Again, knowing they were heard and taken seriously may go a long way in preventing litigation.
- Recognize a complaint.
This may very well be the most important step employers can take. Employees often report complaints by stating they want management to keep their confidence and not tell anyone they complained or they may state words to the effect of “I don’t want you to do anything, I’m just venting.” Management’s standard response to these statements should always be: “I can’t do nothing.” Your obligation is not just to the company, but to protect the employee, even from him/herself. This means all complaints should be addressed, even the “unofficial” complaints.
Deena B. Rosendahl, Esq., of Kaufman, Semeraro & Leibman, is an attorney with 20 years of experience specializing in employment law and business law. Representing both employers and employees, Rosendahl brings a unique perspective when litigating employment cases as well as counseling and advising employers on day-to-day employment-related questions and concerns. Rosendahl regularly represents business owners in negotiating, reviewing and drafting various business contracts—including commercial lease agreements, license agreements, service contracts and shareholder agreements—and, when necessary, prosecuting and defending commercial litigation claims. Rosendahl can be reached at Drosendahl@northjerseyattorneys.com.