In the last 18 months JorgensenHR has conducted over 50 workplace investigations. During this time people have asked me what the issues were and assumed they were mostly sexual harassment in nature. With workers coming back to the “office” having been isolated and working remotely for almost 3 years, issues are arising in many other areas. Many employees are not getting along and believe they are being harassed or discriminated against.
Federal law provides an affirmative defense for employers who take steps to prevent and respond to harassment. The defense is commonly called the Ellerth/Faragher defense. Elements of the defense include implementing procedures to prevent and respond to complaints of harassment. The second element is when the employees fail to reasonably take advantage of the employer’s preventative procedures.
When must an employer investigate?
- When an employee verbally mentions it to a supervisor, manager or HR
- A written notice is received from an employee
- Employee calls your hotline with a complaint
The employee’s complaint may fall into several categories including:
- Discrimination based on sex, race, religion, national origin, gender or age
- Employee conflict and hostile work environment
- Safety issues
- Harassment
- Retaliation
Investigation must be conducted in a timely manner from the time the company knew or “should have known” and failure to investigate may put the employer at risk.
Common reasons why complaint was not investigated:
- The employee did not put it in writing
- It was not a “formal” complaint
- “The employee asked that I not do anything”
- “The employee told me in confidence, we are friends”
• Manager aware of behavior; not offended; so, did nothing
Here are the most common pitfalls:
- Ignoring complaint
- Complaint not taken seriously by management or company
- Failure to plan
- Investigation not conducted timely
- Not enough information gathered & no supporting documents
- Not conducting a thorough investigation
- Investigation not impartial, losing objectivity
- Being distracted in interviews
- Report poorly written and/or hard to follow
- Failing to reach a conclusion
- No follow-up after investigation with those involved
- No follow-up to ensure no further occurrences
- Not following company procedures or practices
- Action not taken or not consistent
Looking at all these potential areas of liability an employer might ask, should we investigate the complaint internally?
What to consider for internal investigations:
- Is the person properly trained?
- Is the person aware of the company’s harassment policy and following procedures as outlined in the policy?
- Is the person neutral and impartial?
- Does the person supervise any of the parties involved?
- Is the person comfortable probing and asking questions of a sensitive or sexual nature?
JorgensenHR conducts our investigations under attorney/client privilege usually when an internal person lacks sufficient experience in conducting investigations and assessing employees’ credibility and when an internal investigation was conducted but not thorough.
When we conduct a workplace investigation, we ask the following questions:
- What was the incident?
- When?
- Where did it occur?
- Who was involved?
- Witnesses?
- Was it reported?
- Who was it reported to?
- Were there prior incidents?
- Who else (if anyone) did this happen to?
Investigations are time-consuming, costly, disruptive and emotional for employees. Taking the time to conduct a thorough investigation on the front end can help and limits company risk and exposure on the back end. Contact your employment attorney immediately if you think you might need to investigate or if you do not have one give JorgensenHR a call.
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