By: Laura Caty & Kiley Barnard
To foster a healthy workplace environment and protect from liability, employers must have a formal process for conducting a workplace investigation for any complaints presented by employees. Consider the following scenario:
Sarah’s boss has consistently asked her to get drinks after work and she always says no but does not give a reason why. Sarah’s boss has also suggested if the two of them developed an outside work relationship Sarah could benefit, but again, Sarah is not interested. Once Sarah’s boss got the hint, Sarah noticed her boss’s attention shift to her co-worker Emily. Emily confessed to Sarah that their boss was now asking her on dates and she always declined, but felt very uncomfortable about the situation. At that point, Sarah wrote a complaint to the Human Resources Department.
Now what? Each workplace investigation will vary depending on the underlying facts, but it is recommended to: (1) take immediate action to stop the alleged conduct; (2) carefully select an unbiased and impartial investigator; (3) interview all the relevant witnesses; and (4) determine if the investigation reveals any violations of company policy, legal issues, or criminal issues requiring action.
Applied to the facts above, Sarah’s employer must immediately stop the alleged behavior between Sarah’s boss and the women in the office. Once appropriate intervention occurs, the employer should carefully select an investigator who will probe into the allegations in more detail. Since the investigator must remain impartial and objective throughout the investigation, it is best to avoid selecting employees who could have inherently or implicitly biased views of either Sarah or Sarah’s boss. The investigator should develop a list of witnesses to interview to obtain all necessary facts using a balanced approach to maintain privacy and confidentially as is practicable to conduct a thorough investigation. Finally, the investigator should evaluate the information and determine whether an issue requiring further action exists. If no issue is found, the investigator should say so. If there is an issue, the investigator will make a recommendation of corrective measures, which can include, but is not limited to, coaching, training, disciplinary action, or termination.
Companies are strongly encouraged to consult counsel throughout the process. Because without a thorough workplace investigation process, a “Sarah’s boss” can create trouble. And, Graydon is here to help! Graydon’s skilled and experienced attorneys are available to serve as an investigator or schedule trainings and presentations to educate clients on the process.
