When an internal complaint of harassment or discrimination has been made, investigating the matter can help an employer understand the underlying facts surrounding the claim. An investigation can shine light on whether a disciplinary measure should be taken, or if any potential legal risks or claims exist. Human Resource professionals can conduct comprehensive and effective investigations to resolve employee disputes. Other times, an attorney may need to be brought in to handle a large-scale investigation between employees. Deciding who will conduct the investigation is a difficult decision employers have to make. Our August 18, 2022, article explained the importance of a workplace investigation, and this article will discuss what factors an employer can consider when choosing an investigator.
Human Resource Professionals as Investigators
Federal law requires employers to investigate matters involving harassment or discrimination. Workplace investigations concern sensitive subjects, and a professional is necessary to handle such matters. A successful investigator will have exceptional listening skills, patience, knowledge of employment law, and the ability to remain objective.
An HR professional will likely be a good candidate to conduct an investigation since they pay attention to details to gain all the necessary facts and evidence and can advise the employer on the appropriate course of action. This requires interviewing the complainant, witnesses, and the accused in a relaxed manner, asking follow-up questions, or rephrasing questions to obtain honest information. Ensuring the HR professional is unfamiliar or unassociated with either the accused or complainant is critical when conducting an unbiased and impartial investigation.
Attorneys as Workplace Investigators
When an employer decides that an HR professional may not have the ability to stay impartial due to the senior level of the employee who made the complaint or the accused, or the allegations of misconduct are particularly egregious or legally complex, the employer may wish to consult with an outside attorney to conduct the investigation. There are various interests involved in a workplace investigation: the interest of the accused to not be negatively labeled or stigmatized without a fair chance to explain their side, and the interests of the complainant to not have their claim arbitrarily dismissed. An attorney can help an employer balance these various interests in an objective manner that shows no favoritism or preference for one party over the other.
- Status of the Accused
When the accusation is made by a lower-level employee against a senior level employee, impartiality may be difficult to maintain for an investigator who is managed by or works under the accused. An investigator must not have a stake in the outcome of the investigation. Even well-liked employees who are accused of misconduct raise concerns about an investigator being neutral. Subconsciously, the investigator who works for the employer may make implicit assumptions that the accused is innocent because they are friendly with or favor the accused.
Choosing an attorney who has no prior dealings with the accused can avoid the issue of appearing biased since an attorney is unlikely to form an opinion before the investigation commences or concludes. This can create a necessary barrier to keep the investigator neutral and avoid the appearance of “whitewashing” or tainting the investigation. A challenge to the credibility of the investigation may be disproved by showing a sufficiently independent attorney conducted a neutral investigation.
- Knowledge of Employment Law
Workplace investigations implicate a variety of issues within the employment field. Attorneys can analyze several complex problems that arise from a misconduct complaint, as well as potential legal claims that may result from the complaint. Attorneys who specialize in employment law can control the scope of the investigation because an attorney is familiar with what questions need to be asked and why. This limits the possibility of the investigation expanding and contains the review to only questions that are necessary to garner the appropriate facts and evidence. Through their knowledge of employment law, attorneys may also be able to better assist employers in what preventative and corrective measures to take after concluding an investigation.
- Asking the Right Questions and Assessing the Answers
The investigation should be reasonably related to the current complaint and inquire into the relationship between the accused and the complainant. The purpose of the investigation is not only to obtain answers to questions, but to ask the right questions to understand the motivation and intent of the accused and the complainant, as well as the plausibility of the claim. Attorneys are experienced and trained to corroborate and weigh the evidence presented to them in a misconduct claim.
- Preventing Retaliation
A misconduct claim can bring about hasty actions to quickly resolve the complaint. Retaliation can be taken by the employer against the accused or complainant to resolve and dismiss the complaint. In response, employees may also retaliate against the employer if they feel they have been wronged by the employer’s actions.
Many times, employers do not intend their actions to be malevolent. Since employers are encouraged to act quickly when they receive a misconduct complaint, an experienced attorney can guide the employer through the appropriate means to avoid engaging in retaliation and arbitrary conduct. Having an experienced employment attorney investigate a complaint may also limit unfounded legal claims filed by the accused or complainant in retaliation against the employer. An attorney unassociated with the employer can remove the taint of favoritism or bad faith that are often implicated in retaliation claims.
Takeaway
Being faced with an internal harassment or discrimination complaint is no easy feat and the employer’s reputation is often at stake. When investigating, employers want to ensure they have chosen the right investigator to uncover all of the facts and effectively manage the many sensitivities involved in conducting an investigation.