The first time you learn of an employee’s complaint probably isn’t the day your company is served with a lawsuit. In most cases, the alleged victim complains to the company first. While an initial internal complaint provides an opportunity to solve the problem and limit your legal exposure, all too often an employer drops the ball by not following a few simple steps.
In general, three principles apply to every complaint of misconduct or inappropriate behavior you receive.
First, take all complaints seriously. Even a stopped clock is right twice a day, and the fact Ernie the Employee has made six complaints in the past six months doesn’t mean this particular complaint is unfounded.
Second, you should investigate all complaints in accordance with your consistently-applied plan and policies, and thoroughly document the process. As with most employment issues, consistency and documentation are always a good idea.
Finally, if you determine some misconduct occurred, take prompt remedial action.
Create an Investigation Plan: While devising an investigation plan may sound annoying and cumbersome, its importance can’t be overstated. It sets the framework for your investigation of and response to any complaint. A thoughtful plan not only keeps the investigation on track, but is a helpful step in creating a shield from liability in the event of future litigation.
Generally speaking, each time a complaint is reported, a company needs to ask some basic logistical questions:
What is the complaint about?
Who should be on the investigative team?
Who should be interviewed, and in what order?
Where should interviews occur?
What is the scope of the investigation?
What is an appropriate deadline for completing the investigation?
All investigators should be well trained, detail oriented and objective. Administrative leaders and human resources professionals are typically good investigators, though you may also opt to hire an external consultant or attorney if the situation is particularly serious. It, hopefully, goes without saying that anyone who is accused of improper conduct or who is a witness should not conduct the investigation or make the final investigative decision.
Once the investigative team is set, everyone should review the relevant company policies as well as any written statements, documents or physical evidence provided by the victim/complaining party (“complainant”). Each investigator should be reminded to keep contemporaneous notes of the facts uncovered, but to record any personal opinions and conclusions separately. You should also consider whether you want to ask each interviewee to sign a statement.
Interview the Complaining Party: Once you have a plan, it’s time to interview the complainant. It’s always a good idea to start off by thanking him for raising the issue. Assure him that he will not be punished or retaliated against, and ask the complainant to report any retaliation or issues to you immediately. Further, take the time to explain the ground rules to the complainant.
Don’t promise the investigation will remain completely confidential, though do make every effort to only disclose the allegations to employees with a genuine need to know. Explain to the complainant he is expected to provide a truthful and thorough accounting of events, evidence and witnesses. Ensure at the outset that the complainant believes that the investigation can be conducted in a fair and objective way.
Keep in mind that your main job at this stage is to get all the information that this person can give you. When asking questions about the alleged events, get as many details as possible regarding who, what, when, where and how. Again, asking the complainant to write and sign a statement is usually a good idea. Ask the complainant to identify any witnesses or documents that may provide additional information, including personal emails or notes. Further, ask the complainant what corrective action he believes would be appropriate.
Assure him that if investigation reveals inappropriate conduct occurred, the company will take appropriate corrective action, up to and including termination. Remind him that if anything else comes to mind, he should let you know.
Finally, as soon after the interview as possible, review your detailed notes and prepare a summary of the interview while it’s fresh in your mind.
Interview the Accused: While you’ll go over the same ground rules with the accused, you’ll also want to assure him that no conclusions have been reached and that this interview allows him the opportunity to present the other side of the story. Be sure to discuss each alleged improper statement or action and allow the accused to respond to each one. He may surprise you and dispute some statements but not others.
You should also assess whether the accused has any reason to believe the conduct was welcome. For example, the complainant and the accused may have had a long-standing consensual relationship that’s recently gone south. As with the complainant, observe the accused’s posture, tone of voice, eye contact and other body language as it may provide valuable insight into the individual’s credibility.
If the accused admits to the behavior, you can terminate the investigation and decide the appropriate corrective action to take. If the accused refuses to participate in the investigation, inform him that the company will base its decision on the information gathered during the investigation and the inference it draws from the accused’s refusal to cooperate.
Interview the Witnesses: Sometimes there will be witnesses to the alleged behavior. Interviewing these third-party witnesses may provide the most impartial information, though that’s not necessarily the case among friends or enemies.
While you need to provide witnesses some information concerning the allegations, you probably don’t need to go into great detail. Instead, go through each incident the witness allegedly observed and then ask if there’s any other information they have that might be helpful. If the witness denies knowing anything, ask whether he knows of a reason why he would have been named as a witness. Again, keep good notes and prepare a summary soon after the interview.
Once you think you’re done interviewing witnesses, double check your interview summaries to make sure that you’ve followed every substantial lead. While you may not need to talk to all 25 employees who allegedly watched Ernie the Employee get slapped, you do need to ensure that you haven’t accidentally forgotten to interview a key witness, review a surveillance tape or locate a critical email.
Make a Decision: Once the interviews are complete and all the documents or physical evidence has been reviewed, you must determine whether the alleged misconduct actually occurred. This stage is often the most challenging for a company, and consulting with legal counsel may be particularly helpful.
Keep in mind you don’t necessarily have to conclude that nothing bad happened just because there are no witnesses and the accused denies the allegations. Similarly, the company isn’t required to accept unsubstantiated allegations. The decision-maker should consider the evidence and the witness statements, and may make credibility determinations.
Once you have reached a conclusion, you need to decide what action to take. If you determine misconduct occurred, you must decide what corrective action to take against the accused. In the case of harassment or discrimination, this action must be prompt and reasonably calculated to fix the problem.
What corrective action is appropriate depends on a number of factors, including the severity of the conduct, how many incidents were involved, and whether the misconduct represents a pattern. The decision makers should also review all relevant company policies and procedures as well as what actions the company took in similar situations. Remember, consistency is invaluable.
While you need not provide details, the company should then communicate the results to the complainant and the accused in a discrete and confidential manner, even if the company determines no misconduct occurred or if the investigation was inconclusive.
In that case, the company should also restate its position that it will not tolerate unlawful harassment (if applicable) or misconduct, and that the complainant will not be punished for raising the issue. The company should invite complainant to report any future misconduct or any additional evidence that supports the original allegation.
Finally, your results should be documented in a Final Investigation Report that lays out the allegations, the interviewees, the timetable, a summary of findings as to each incident or allegation and the investigators’ overall conclusions.
Even if an allegation is completely merit-less and the company conducted a “textbook” investigation, they can still be liable for retaliation. A company representative should follow up with the complainant periodically for several months after the investigation to ensure there is no further misconduct or retaliation.
While complaints come in all shapes and sizes and no two investigations will be identical, following these guidelines will help you to effectively respond to complaints.