Avoiding Investigation Mistakes in the `Me Too’ Era

05 March 2018 Labor & Employment Law Perspectives Blog
Author(s): John F. Birmingham, Jr.

Workplace investigations have always been a key part of the human resources function and employment law compliance. However, the need for such investigations, and the consequences of conducting them poorly, have grown exponentially in the “Me Too” era.

Obviously, more employees are aware of their rights and feel emboldened to exercise them. Additionally, complaints not only involve the traditional categories of discrimination and harassment, but now increasingly include harder-to-define areas such as “bullying” and “intimidation.” In the current environment, there is also a higher expectation that employers investigate and address complaints appropriately.

While most employers have an established investigatory process, and handle the blocking and tackling well, here are five common, but not always obvious, ways to trip up:

  1. Not initiating an investigation until receiving a formal complaint. Once a member of management has notice of a potential violation, the organization must act. That is not to say that a full-scale investigation must be initiated every time there is an inkling of any type of problem. However, an employer is well-served to explore potential situations and address them before they fester and explode. Managers must be told that it is their job to alert human resources or the appropriate person if they become aware of harassment or another policy violation.
  2. Failing to reach outside the organization for help. There are certain situations that call for an independent investigation. If a CEO, Board member*, or high-ranking executive is potentially implicated, if the incident is likely to draw public attention, or if the objectivity of an internal investigation will reasonably be questioned, strongly consider retaining an outside expert.
  3. Promising confidentiality. “I want to tell you something really bad and important, but you have to promise not to tell anyone else.” No manager should make this promise. While employers can and should emphasize appropriate discretion, complete confidentiality is inconsistent with the duties that a manager has to the organization and may violate due process rights of the accused.
  4. Refusing to make a credibility determination. Companies must resist taking the easy way out and concluding that this is a “he said/she said” situation. While, there may be times when the results are truly inconclusive, the standard to be employed is not “guilty beyond a reasonable doubt.” The investigator must exhaust other sources for testing credibility and must sometimes simply engage in the difficult task of assessing who is lying based upon physical and nonverbal cues, motive, past behavior, etc.
  5. Rushing to judgment. In our attention-deficit, smartphone-driven society, we want immediate answers and are prone to snap judgments. However, a lot is at stake—reputations, careers, emotional and physical well-being, etc. The investigator must take the time to provide due process, thoroughly analyze the evidence and make a reasoned conclusion.

There are many other components to investigation excellence, and employers should consider training as well as process updates. Those in charge of compliance must raise their games in light of the challenges posed by the current environment.

*This article was originally published in the Miami Herald. To view the article, please click here.

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