What happens if one of your employees files a complaint against another employee? Should you address the issue promptly, or try to smooth it over in the hope that the problem will just go away?
A prompt, thorough investigation of an employee complaint isn’t only good policy — it can be a mitigating factor in any court’s analysis of a claim against your company. Whether the investigation is handled by human resources, the legal department or outside counsel, it should be done as soon as possible.
Here are some general guidelines to follow when an employee complaint is filed.
- You must investigate. Even if the complaining employee asks you not to do so, once the company is on notice of a claim, it has the legal obligation to investigate.Your human resources representative should strongly consider involving the legal department at the early stages of the investigation.
- Begin with a plan. The goal is to determine whether any inappropriate conduct has occurred and, if so, to correct the situation. The more you know, the more effective your decisions will be. Assessing who are potential witnesses, planning what questions to ask, deciding which documents to review, and so on, will better enable you to focus on the information-gathering process, rather than be swayed by emotion or sympathy.
- Details matter. In every investigation, details are critical, both in determining if the conduct has occurred, and whether it constitutes harassment.
- Keep an open mind. Sometimes the most sympathetic witness is merely a persuasive liar. On the other hand, the most cool, disinterested witness can be completely truthful. Listen carefully, record and document what’s being said, and weigh the data after the investigation is complete.
- Find the truth. Your company’s long-term interest lies in uncovering the truth — not in hiding or defending harassing conduct. Honest and accurate record-keeping is essential during all stages of the investigation.
- Enlist more than one person in the investigation. Often the decisions regarding the outcome of the investigation require some credibility determinations. Comparing notes and bouncing ideas in terms of the order of witnesses, questions to ask, etc., can be invaluable. In addition, you may want to have two separate interviews with a witness or witnesses conducted by two different people.Conducting Interviews
- Interview the complaining employee first. Schedule an interview as soon as possible after receiving the complaint. It may take time to elicit all the relevant information, so plan accordingly; if you feel rushed or pressed, you might not get the necessary information the first time around. This can damage the integrity of the investigation later on.
- Don’t promise or guarantee confidentiality. Tell the employee who filed the complaint (and any other alleged victims) that while you’ll try to keep the matter confidential and treat information with discretion, it may be necessary to disclose their allegations and names on an as-needed basis, in order to effectively conduct the investigation.
- Be thorough. This is vital, even if it means pressing the employee for an exact description of the alleged behavior, times and dates that the alleged behavior took place, if any witnesses were present, etc. Don’t settle for general descriptions of inappropriate conduct.
- Ask the right questions. The following are intended as guidelines only and are by no means an exhaustive list:
- What happened?
- When did it happen?
- Who did it? What is the relationship?
- Where did it happen?
- Were there any possible witnesses? Who?
- What was said or done?
- What was your reaction?
- Did you tell anyone? If not, why not? If yes, who?
- What, if anything, did you do about it?
- Is this the first time something like this ever happened?
- Has it happened to your knowledge to anyone else in the group?
- Do you have any notes, recordings, e-mails, voice mails, pictures, etc., that would support your story?
- Keep an accurate record. Tape the interview (but only with the employee’s consent) and have him or her correct and sign the transcript.
- Interview other alleged victims. Follow the same procedures described above.
- Interview the alleged harasser. Make it clear that the individual will have a full and fair opportunity to respond to the allegations. In doing so, it’s helpful to explain your role as a “fact-finder,” i.e., your job is to investigate every claim, and the company is only interested in gaining all the facts. The individual should understand that retaliation is not permitted under any circumstances, even if the allegations are unfounded.
- Insist upon confidentiality. Sometimes witnesses divulge information to outsiders if they feel they have no personal stake in the matter. Witnesses should be instructed not to discuss the matter with anyone and should also sign a confidentiality statement. Lack of confidentiality can taint the entire process.
- Ask witnesses general questions. This way, you’ll more likely elicit information and avoid appearing accusatory to a particular individual. In addition, if witnesses pinpoint the same or similar conduct that formed the basis for the complaint, this lends credibility to their accounts.
- Review any documentary information. Look at personnel and other relevant files to see if any similar complaints have been lodged against the alleged harasser(s). Also determine whether the complaining employee has brought complaints against other employees. Copies of e-mails are a common source of information. Individuals may also have diaries, notes, expense reports, etc., that may support or refute the allegations. All such documents should be reviewed.
Acting on the EvidenceAfter the interviews are completed and you’ve had the opportunity to review all of the documentary evidence, it’s time to make a determination as to whether the conduct actually occurred.If the conduct is determined to be harassment, you must act.
- Prepare a short proposal for the discipline you believe is warranted.
- Recommend discipline that is proportionate with the seriousness of the offense and consistent with your company’s harassment policy.
- Tell each individual involved the outcome of the process. Begin with the complaining employee, then inform the harasser next. Do so as soon as possible to avoid damaging rumors.
What if, after all is said and done, you can’t determine the truth?
- You still must take some action! Advise the complaining employee, “While we couldn’t substantiate the allegations, we’ve warned the alleged harassers not to engage in any retaliatory conduct. Please let us know immediately if there are any future problems.”
- Remind the accused in writing of the company’s non-harassment policy and put him on clear notice that if he engages in any prohibited conduct in the future, he can be disciplined up to and including termination.
After the investigation is finished, the complete file should be stored in a confidential area. These files must not be altered or destroyed. Vistage speaker Theresa E. Loscalzo is a partner in Schnader Harrison Segal & Lewis, LLP, in Philadelphia.