Internal investigations, Part 1: Conducting a good-faith review
For the vast majority of issues that come up in the workplace, HR is fully competent to investigate and should not be afraid of doing so, experts say.
When an employee lodges a complaint, HR must seriously consider an investigation, experts told attendees last week at the Society for Human Resource Management’s (SHRM) annual conference.
While some things may be better left to attorneys, HR should feel free to conduct most investigations internally, Pavneet Singh Uppal and Shayna Balch, both partners at Fisher Phillips LLP, said. The key, however, is a "good-faith" review.
Why — and when — to investigate
Investigations are necessary because something that starts relatively small can result in a multimillion-dollar jury verdict if you fail to act, Singh Uppal said. And it can be important to bring in a law firm if, for example, the complaint alleged misconduct on the part of an executive or someone in HR.
But, "for the vast majority of issues that come up in the workplace, you are fully competent to conduct an investigation … and you should not be afraid of doing so," Singh Uppal said. When you're conducting interviews, things that attorneys have to worry about — hearsay, leading, statutes of limitations — don't apply. Your only obligation is to conduct a good-faith investigation, he said; "the standard is good faith and a well-reasoned conclusion."
Even if your ultimate determination turns out to be wrong two years later, you may feel bad about it, but you will not be legally liable if you acted in good faith, Singh Uppal said. Judges realize that HR professionals are not lawyers, generally, and that not every single issue needs to be escalated to a court of law.
Of course, every single complaint doesn't warrant an internal investigation either, he said. If someone feels slighted because they're often left out of lunch plans, an investigation isn't necessary. But if it's a group of five white males excluding their black female co-worker — and lunch is where business decisions are made — that needs to be taken more seriously. A good rule of thumb? Investigations are for issues of misconduct that might make their way to court.
This can include issues that you observe, even if there is no complaint. For example, if people older than a certain age are never hired in a certain department, you need to look into that pattern, Singh Uppal said.
And if you don't investigate claims, every action will be perceived as retaliation. A good-faith review can not only serve as a defense in court, but, if done respectfully, it can prevent further action altogether.
Long before you have a claim that requires investigation, you should have a few things in place. First, you need to educate yourself, and keep track of that education, said Balch. If you're faced with a lawsuit, a plaintiff's attorney will try to poke holes in your credentials, she said. Document your trainings on the topic; track your reading material; know how many investigations you've conducted, she said; "build your CV."
Next up is ensuring that all employees have received notice of the company's policies and rules, such as your anti-harassment and anti-retaliation policies. You should review them at least yearly, and make sure you have proof that employees received the policies, Balch said; this could be an acknowledgement form or a sign-in sheet for in-person trainings, for example.
Finally, when you do receive a claim that requires an investigation, create a witness list, set a timetable and start conducting interviews, Balch said.
Your investigation must be adequate and thorough, Balch said. Ensure fairness and a lack of bias, and maintain strong documentation, she said. This means you’ll need a second person who can serve as a witness and notetaker during your interviews. But be careful with the notes, she cautioned; your documentation from the investigation will be the first file that a plaintiff's attorney requests, and notes taken during meetings, emails and more could all end up in front of a jury. This means, for example, taking care not to note that someone was "harassed;" a jury won't understand the difference between harassment as a matter of law and your handbook definition, she said.
Moreover, don't promise confidentiality, but ensure employees know that there will be no retaliation for their participation.
And during those interviews, it's important to ask the right questions. Start with the complaining employee and ask for for texts, emails or something that might have been caught on video, Balch said; "There's nothing worse in defending a lawsuit than when the plaintiff has a document and the individuals conducting the investigation never saw the document."
Then move on to witnesses. Can they corroborate the story? Even if a complainant's co-workers didn't see the alleged action, they may be able tell you about several other instances. You're going to want to talk to as many witnesses as possible, especially for severe allegations. And plan on going back and re-interviewing people, Balch said.
Finally, interview the accused, and understand that you may receive some cross-claims at that point. You may need to investigate those as well, but new claims don't stop your current investigation or prevent discipline. You also may get some push back — employees asking whether they're required to be there or whether they can have an attorney present. "You can require as a condition of employment that they participate and are truthful," Balch said. You also don't have to allow attorneys; you're conducting an internal investigation.
During this process, it's likely that you'll receive conflicting evidence, Singh Uppal said. In that case, "you do the same thing that jury ultimately does: you decide who's telling the truth and who's lying," he said; "You consider both sides."
"Can they tell you a story and seem credible?" There's nothing wrong with making that judgment call because that's what juries do every day, he said. Additionally, consider the plausibility of the claim. Has an employee accused his or her manager of failing to promote them because of their race, but the manager is the same person who hired them three months prior? That's a factor against plausibility, Singh Uppal said.
On the other hand, is this latest allegation just one of several sexual harassment complaints you've received about one individual? And does he or she have stock options that are about to best? Ask yourself: does this person have reason to lie?
For more information see Internal investigations, Part 2: Detecting lies and deception.
Drawing a conclusion
At the end of your investigation, you'll need to reach a conclusion. As noted above, you don't need to prove or disprove the allegations; you need to conduct a good-faith investigation and reach as well-reasoned conclusion.
Compile your notes, write a wrap-up memo and be sure to keep everything separate from personnel files (unless someone is subject to corrective action), Balch said. This should include a chronology of events, a list of interviewees and the list of documents you reviewed, said Singh Uppal.
And if you determine that there was misconduct, take remedial action that is reasonably calculated to both end the misconduct and send a message to the individual that they are not to engage in that conduct in the future.
Complainants often want the target of their allegations terminated, but your duty is not to satisfy their desire, Singh Uppal said. Perhaps you need only to tell someone to stop hugging others; on the other end of the spectrum, assault should result in termination, he noted. If it doesn't, you're sending the message that "at some level, we do tolerate this if you make enough money for the company." That's not going to fly with a jury, he said. Discipline should be proportional and consistent.
Discipline should come with a formal notice, too. Be as specific as you can, but don't draw legal conclusions, Singh Uppal warned. Not every sexist comment meets the legal standard for harassment, and you don't want to make an admission that harassment occurred without a jury every reaching that conclusion. Instead, employers often will note that the individual is being terminated because they failed to adhere to the company's values, for example.
It's important that your efforts not end there, however. Issue warnings prohibiting retaliation, suggested Singh Uppal; even if you determine that the complainant's allegations didn't have merit, retaliation still has severe consequences. Email the complainant every few days to make sure they're not experiencing retaliation; make it difficult for them to establish retaliation. Document the effect of any remedial measures and consider training. This shows a jury that you took the alleged conduct seriously and won't tolerate such actions in your workplace.
Finally, if the complainant says they're just not comfortable working for the company anymore, help them with a plan, and document that you're helping, Singh Uppal said. Consider offering eight weeks' severance pay, for example — conditioned, of course, on a release of all claims.
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