Landmines To Avoid In Conducting Workplace Investigations

INTRODUCTION

With alarming regularity, employers find themselves in the unenviable position of having to investigate workplace complaints made by their employees. These complaints can range from informal allegations of harassment or discrimination to formal written complaints of criminal misconduct. Regardless of the subject matter, employers face significant liability risks if they do not handle workplace investigations properly. This article discusses some of the issues that employers should consider in conducting workplace investigations.

WHEN SHOULD AN EMPLOYER CONDUCT AN INVESTIGATION?

Employers will often make the mistake of waiting for a formal complaint from an employee before commencing a workplace investigation. This is not a good practice. Investigations should begin as soon as the employer becomes aware of a potential issue. A delay in an investigation can lead to dire consequences in any subsequent lawsuit. An aggrieved employee, for example, may be able to use the delay as evidence that the employer condoned or even ratified some unlawful conduct.1 In some cases, a delay may even create an inference of bad faith, which could be used against the employer as the basis for a punitive damages award.2 The Equal Employment Opportunity Commission (EEOC) has similarly warned that "if an employee files an EEOC charge alleging unlawful harassment, the employer should launch an internal investigation even if the employee did not complain to management through its internal complaint process."3

The bottom line is that federal and state harassment and discrimination laws impose a legal duty on an employer to promptly investigate employee complaints. These complaints do not need to come through formal, established channels, nor do they have to be in writing. Once the employer learns of problematic issues in the workplace, the employer should be proactive in initiating an investigation.

WHO SHOULD CONDUCT THE INVESTIGATION?

In its Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors¸ the EEOC advises employers to select an investigator who can conduct a "thorough, and impartial investigation" and who has no stake in the outcome of the investigation. Potential candidates may include a member of the employer's human resources department, in-house counsel, or an outside, neutral third-party investigator. Regardless of the selection, the employer should select an investigator who can objectively gather and...