Dos and don'ts Featured

8:58am EDT February 25, 2005
Thorough investigations will buttress an employer's defense to keep an alleged harasser from successfully suing after being terminated for misconduct. Employers have a legal duty to promptly and effectively respond to employee complaints of alleged misconduct so as to avoid suits by the accuser.

So what constitutes a proper investigation? There is no set protocol, and the unique facts underlying a complaint may require unique responses. There are, however, general guidelines that should be considered as part of any investigation.

Employers must develop and disseminate policies that give employees the right to raise complaints. All employers should distribute a written policy that both prohibits harassment and retaliation, and outlines a basic investigation protocol.

When and how to commence an investigation

Employee complaints must be responded to with the utmost urgency. Depending on the nature of the allegations, employers might consider separating the accuser and accused during the investigation.

While this can be accomplished through reassignment or a leave of absence, employers must avoid subjecting the accuser to any tangible adverse employment action, such as unpaid leave or an undesirable reassignment.

The interviews should begin with the accuser, who should be informed that the information shared with management will be kept confidential, but not secret. Company representatives should also explain that the company prohibits any form of retaliation, and that if the employee feels he or she is being treated differently because of the complaint, that person should immediately contact a manager or a human resource representative.

After addressing the preliminary issues, the accuser should be asked to relate every allegation in as much detail as possible, and the investigator should take copious notes. An investigator should take particular note of any written evidence, such as offensive or inappropriate e-mail.

Immediately after completing the initial interview, the investigator should memorialize the detailed allegations in a written summary. This document must be prepared with the realization it may be used in subsequent litigation.

* Give the accused an opportunity to respond.

The accused should be presented with detailed allegations. While employers often assume the person will simply deny the allegations, giving him or her an opportunity to respond has significant legal consequences.

The investigator should take copious notes during the interview and reduce those to a summary following the interview. The handwritten notes and any relevant documents should be maintained for possible use in subsequent proceedings.

* Create an interview list and questions.

Using information provided by the accused and accuser, the investigator should compile a list of questions for each identified witness or corroborating person. Drafting a list of questions will assist the investigator in recreating the interviews, should litigation arise.

* Prepare a written record of each interview.

The investigator must take detailed notes of any interview and collect any relevant documents from those interviewed. Every interviewee, including the accused and the accuser, should be provided a copy of the company's relevant policy and be asked to sign an acknowledgment form stating they have been told that retaliation will not be tolerated.

* Analyze gathered information, draw conclusions and take appropriate action.

After completing the interviews and reviewing the pertinent documentation, the investigator should come to a reasoned conclusion based on available information.

The touchstone of any adequate investigation is ceasing harassment that is occurring and assuring that similar conduct does not occur in the future. The remedial measures chosen must be sufficient to satisfy that obligation.

* Promptly report results and ensure no retaliation is occurring.

Keep the accuser apprised of what steps the investigator is taking and what conclusions he or she was able to draw. At the appropriate time, inform the accused of the results.

Following the investigation, the investigator or human resources representative should periodically make certain that no one has been subjected to retaliation or further harassment.

Responding to discrimination and harassment complaints presents a virtual minefield of legal issues. While these guidelines are important, they should not be used as a substitute for consulting with competent employment counsel about employers' rights and obligations when responding to complaints of misconduct.

Lynn C. Outwater is the managing partner of the Pittsburgh Office of Jackson Lewis LLP. Joseph S. Palmiero is an associate, same office. With 20 offices across the country, Jackson Lewis represents management exclusively in workplace law and preventive strategies. Reach them at outwatel@jacksonlewis.com, palmierj@jacksonlewis.com or (412)232-0404.