Fair Employer Investigations of Workplace Misconduct.

It happens to every employer. At some point, an employee comes to a manager, supervisor, or owner and explains that a coworker, or worse, a supervisor, has done something that the reporting employee does not like. The offensive conduct can be as minor as an employee showing up late or as serious as sexual misconduct. When the employee reports the problems, he or she usually wants a resolution. Most often the employee wants the resolution quickly. Often the issue can be resolved with a simple discussion. On other occasions, such as when an employee reports illegal activity, a more thorough investigation is often warranted. In fact, in some situations, an investigation will serve as a strong potential defense against claims of illegal practices.

Many claims warrant more thorough investigations. One such situation includes claims of sexual harassment. In 1998, the United States Supreme Court, in two separate cases decided on the same date, declared that an employer sued by an employee for claims of sexual harassment resulting in “no tangible employment action” can raise an affirmative defense that includes as elements the employer’s use of “reasonable care to . . . correct promptly any sexually harassing behavior” and the employee’s unreasonable failure “to take advantage of any . . . corrective opportunity provided by the employer.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Reasonable corrective actions include internal investigations of the complaints. Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors § V.C.1 (June 18, 1999). Additionally, it may be unreasonable for an employee to refuse to participate in such an investigation. Other situations that may warrant more thorough investigations include claims that an employee has violated the law in such a way that the employer could be liable for the employee’s conduct, claims that an employee has stolen from the employer, or claims that could result in the dismissal of an employee who has a contractual restriction on the employer’s right to terminate his or her employment, such as union employees, or employees with a just-cause employment contract, or civil service employees.
Once an employer has determined to conduct an investigation, the employer must be careful to conduct a good investigation. Mistakes in investigations or in the conduct of an investigation can often lead to employee discontent or, in the worst case, additional legal violations. The hallmarks of a good investigation include the following:

An Objective Investigator. Most employees will view the selection of the investigator as the clearest sign of how seriously the employer is taking the claim. An investigator should never be a person who is claimed to have engaged in the conduct or to be associated with the underlying facts of the investigator. An independent human resource employee who is not below the alleged perpetrator in the supervisory chain is a good choice. For particularly sensitive matter or matters that are likely to end up in litigation, an outside investigator or lawyer may be the best choice.

Appropriate and Timely Process. The process should be appropriate to the claim made. Additionally, the process should be conducted in as expedient a manner as is appropriate. A quick response, coupled with the appropriate level of investigation, increases the perception of fairness.

Objective Inquiries. An investigator should always conduct an interview or request statements from the person making the allegations. He or she should then speak with others who are also witnesses. Additionally, the investigator should assure all witness that there will be no retaliation for the statements that they make. At the same time, the investigator should inform the witnesses that it is a serious matter that should not be taken lightly. The questioning should be with open-ended questions requiring narrative responses as opposed to questions that suggest an answer. The investigator should not comment on any aspect of the investigation with the witnesses.

Keep Good Records. An investigator should record every interview if possible. Additionally, an investigator should keep good notes, making sure that the notes reflect suppositions and guesses.