Bad behavior Featured

7:00pm EDT January 26, 2010

Employment litigation is on the rise, with many cases dealing with workplace misconduct in the form of harassment or discrimination. The recession has incited our already litigious society to the point where employees will sue over misconduct instead of simply leaving the company.

Employers need to take action promptly once a complaint is received, conduct a thorough and fair investigation, and take action against the harasser to warn other employees that misconduct is not tolerated.

“If you don’t conduct an investigation, the behavior could become worse and involve other employees,” says Charles Huddleston, a shareholder with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. “There can also be a lot of time and money involved in employment law cases, and it can generate a lot of ill will and bad publicity for your company.”

Smart Business spoke with Huddleston about developing policies concerning workplace misconduct and investigating incidents.

How are workplace misconduct complaints received?

Complaints can come directly from the victim or from someone who has seen or heard about the incident. Anybody in a management position should report an incident if they see it or hear about it. If it’s not passed on to the appropriate people and the harassing continues, the company will be held responsible.

Anywhere employees are undertaking activities for the employer can be considered the workplace, including a reception area, a business trip or client delivery. The mere fact that harassment or discrimination is occurring off the normal worksite does not immunize you from liability or relieve managers from taking steps to stop it if it’s seen or known.

What is involved in a misconduct investigation?

Investigations should be done promptly, thoroughly and fairly. The severity of the complaint will often determine how promptly the investigation should be handled. Investigations can be unpleasant and, many times, tend to drop to the bottom of people’s lists, particularly if the harasser is someone you know or like or it’s the boss. But every day you don’t take care of it could mean another day that the harassment or discrimination is continuing, and possibly getting worse, if the charge turns out to be true.

You also need to thoroughly investigate the complaint, and make sure all employees who may be involved are interviewed. If the complaint is accurate, odds are this wasn’t the first incident with the harasser, so you need to take time to seek out other potential victims to help build a clearer case.

You should have a trained investigator involved, mainly from the human resources department. Having more than one person involved allows for a fair investigation. If one investigator works closely with the harasser, he or she can step down from the investigation. If the harasser is someone with power and you want to make sure the investigation is handled fairly and the victim is able to tell his or her side of the story, then you may need to bring in an outside investigator; often the company brings in its outside legal counsel to handle the investigation in this situation. It’s also good to have at least one female involved, because female victims will be more comfortable talking to other females about an alleged incident.

Many times, victims will come forward to report an incident, but don’t want to do anything about it. You need to communicate that some sort of investigation needs to take place to stop the misconduct from happening. You should develop a strong anti-retaliation policy so that nothing can happen to the victim after reporting an incident.

How can you develop good policies and procedures to prevent workplace misconduct?

Policies should tell employees who to report incidents to and that all complaints will be investigated. Having policies in place and a good record of investigating, and taking actions to stop misconduct, gives employees no excuse to not report misconduct.

You need to make sure your policies are up to date and include employment law changes from the last several years. Supervisors and managers should be trained, as well as investigators, at least every other year so they’re up to date on the policies and any law changes. Investigators also need extra training on how to properly interview people to try and track down the facts to prove or disprove the allegation.

What action should you take following an investigation?

The severity of the conduct will determine how severe the punishment will be. You don’t always have to fire somebody, but you can take steps to try and change the person’s behavior before further actions are taken. The employee could receive counseling, have reprimand placed in his or her file, and have his or her behavior monitored by the victim and others working closely with him or her. The harasser can also receive extra training on appropriate workplace conduct and language. The employee should be terminated if the behavior continues or the initial incident was too severe.

What are the benefits of putting proper policies in place against workplace misconduct?

Having the proper policies in place and a good track record of investigations gives you a better defense if someone complains. If no report was made by the victim, it can actually give you a legal defense to certain claims. It can also send a message to your employees. The first time someone is reprimanded for harassment, even if it’s not made known publicly, people hear about it and know this is taken seriously.

The number of complaints can actually go down if you put the proper training and education in place, and if you create an environment where workplace misconduct is not tolerated.

Charles Huddleston is a shareholder with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. Reach him at (404) 221-6536 or chuddleston@bakerdonelson.com.