SI Review: Aug. 22, 2013

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Benefit of Counsel

Workplace Investigation

How to conduct a thorough and fair harassment inquiry

By Diane Geller

Adopting a strong policy against discrimination and illegal harassment (including sexual harassment) in the workplace, and if a complaint is received, conducting a full, prompt and impartial investigation, are critical to your company, its risk management and the well-being of all of your employees (temporary and permanent staff).

If an employee feels that he or she has been treated fairly and impartially and protected from discrimination and illegal harassment, he or she oftentimes will not feel the need to bring in the assistance of the Equal Employment Opportunity Commission or another agency. If the individual indicates that he or she intends to seek the assistance of an outside agency, it is important that you do not penalize or threaten to penalize him/her as doing so could result in a retaliation claim.

When an employee lodges an internal complaint of discrimination or harassment, it is critical that the company conduct a timely and complete investigation. Doing so is important to enforcing the company’s no tolerance policy regarding discrimination or illegal harassment and is essential to showing employees that it is serious about enforcing the law.

In that regard, note taking and determination of findings are not only important but also become part of the record. If the complaining employee (or in some cases the alleged violator) later files a grievance with the Equal Employment Opportunity Commission or a state or local agency charged with protecting employee rights, or in some cases with a court, those records are discoverable.

The following is a checklist of steps staffing firms and their clients should take when investigating a complaint while protecting the complaining employee’s rights.

  • Designate a credible investigator. Determine, possibly with legal counsel advice, whether the investigator should be an internal or external individual. Also, designate a respected company manager to be present at all meetings as a witness to all events.
  • Determine if interim measures are needed to protect the complainant, and if so, take steps to remove the alleged violator from the relationship rather than the complainant. Removing or changing the job of the complainant can be viewed as retaliatory action, even in the case of a temporary worker. Make sure your client understands this as well.
  • Take caution as to all documentation prepared as it is likely discoverable. Some documents may be protected under certain circumstances as attorney-client privileged if you have an attorney guiding the investigation.
  • Interview the complainant and obtain all the facts, including copies of all documentation and names and addresses/contact information of witnesses (if they are not company employees).
  • Interview witnesses and other persons with knowledge.
  • Interview the alleged violator, inform him/her of the allegations and ask for his/her response. Ask him/her for others who may have knowledge and remind the alleged violator of the company’s policy regarding retaliation.
  • Complete the investigation.
  • Assess the validity, consistency and veracity of the complainant, alleged violator, and the witnesses as well as any other information provided.
  • Inform the complainant and the alleged violator of the determination and take appropriate disciplinary action if warranted by the findings.
  • Document the determination using such terms as violation of company policy rather than labeling the action as discrimination or harassment.
  • Emphasize to all employees the company’s equal employment opportunity policy and make certain that periodic training is provided and documented (along with a list of attendees).

You should not discuss the nature of the disciplinary action imposed and need only indicate to the complainant that appropriate discipline was taken. The last and critical issue is to make certain that all involved know that the complainant and each person who cooperated in the investigation should not be retaliated against for having filed the complaint or cooperated in the investigation; and direct the complainant and witnesses on how to report instances of retaliation.

Diane Geller is an attorney with Fox Rothschild LLP. She can be reached at dgeller@foxrothschild.com

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