The duty of an employer to investigate derives from federal and state equal employment opportunity and fair employment practices laws, such as Title VII of the 1964 Civil Rights Act. When an employer receives complaints of discrimination or harassment based on a legally protected status, equal employment opportunity laws generally require that employer to investigate and take prompt remedial action to stop any inappropriate conduct. Apart from the legal obligation to investigate, there exists a strong humanistic obligation for employers to investigate. If an employer takes prompt action in response to employee complaints, it can foster feelings of trust toward management resulting in a supportive and productive workplace environment. Often, if an employer responds to one employee complaint, it may positively affect relations with all employees. Employee trust and morale are extremely critical in avoiding lawsuits.
An internal investigation is the process of collecting facts in order to analyze and substantiate the content of the complaint. These facts are usually gathered through interviewing the person filing the complaint, any third-party witnesses, and the person accused.
Selecting the right person to conduct the internal investigation is critical to the process. Good investigators cannot be obtained by simply selecting someone with the ability to ask questions. Central to the investigative process is the ability to identify key legal issues, organize the facts, and properly document both. These skills enable an investigator to organize the gathered information and present it clearly in a final report that is reliable, accurate and usable. Proper documentation and organization of the facts is important when management bases disciplinary decisions on the investigative results.
Choosing an investigator may also depend on other factors, such as the level and position of the accused; the severity and sensitivity of the complaint; and whether the employer wishes to treat the work-product of the investigation as “privileged.” Any actions taken by the employer will be scrutinized by the court in determining the adequacy of the response to the alleged harassment.
Characteristics of an effective investigator include someone who:
- Is trained in conducting workplace investigations;
- Has the experience and knowledge to conduct workplace investigations;
- Can be objective and impartial (not a personal friend of the complainant, the person accused, or other key witnesses);
- Has the time to promptly conduct an investigation;
- Can maintain confidentiality;
- Is a good listener;
- Is able to establish rapport and trust with the witnesses;
- Is able to press for details in interviews;
- Is able to make reasonable credibility assessments; and
- Is able to act as a credible witness.
An important consideration for many employers is whether to hire an outside third-party investigator to conduct the investigation. The prevailing rationale for hiring a third-party investigator is to maintain the utmost objectivity and impartiality during the investigation. The use of a third-party investigator can demonstrate to employees that the employer is committed to an impartial investigation. For example, public employers who risk negative publicity from a complaint may opt to bring in an outside investigator. Employers may also utilize third-party investigators when the accused is a member of upper management. Many employers also turn to third party-investigators when the allegations subject the employer to considerable legal liability. Another reason to use a third-party investigation is that employees may feel less guarded when speaking to someone outside of the organization.
When determining whether to use a third-party investigator, employers should consider the following:
- Is there a lack of internal skills to investigate?
- Is there a lack of internal time to handle the investigation promptly?
- Is the matter particularly sensitive?
- Has Human Resources been accused of bias?
- Is top management implicated?
- Is the investigation high-profile?
Regardless of whether an employer uses an internal or third-party investigator, the key point is to conduct an objective, reasonable investigation with well-articulated findings.
MSEC offers classes on how to conduct investigations and also offers the services of third-party investigators. For more information on our Workplace Investigations services, contact us at 303.223.5650.