Stern noted that most workplace problems go unreported, and if employers are not monitoring company operations, issues may grow significantly by the time a formal complaint is made.
Through
strict adherence to ethical standards, businesses can prevent the majority of
employee lawsuits. However, lawsuits are ultimately based on individual
discretion and not always predictable or avoidable. That's why it's important
to focus on mitigating the effects of potential lawsuits by conducting a proper
workplace investigation whenever necessary.
An
investigation should occur any time an employee reports significant wrongdoing,
misconduct or ethical lapses. A business that conducts a poor workplace
investigation risks damaging both its finances and its reputation.
In
an employee lawsuit, a bungled internal investigation can sabotage the
employer's case and create a direct path to a costly settlement. Also, failure
to execute this common and necessary internal procedure will further embarrass
an already distressed company, compounding the optical effects of the
plaintiff's complaint with a dose of self-assured ineptitude. Just ask IBM,
which paid out $4.1 million in a 2014 age discrimination suit after conducting
an internal investigation too one-sided to admit as evidence.
It
can be taxing, frustrating, and uncomfortable to conduct a workplace
investigation. Thankfully, the process is considerably more manageable when you
know the right guiding principles. Business News Daily spoke with attorney Dan
Stern, an expert on labor and employment matters at Dykema Cox Smith, about
common mistakes and complications in workplace investigations and how to avoid
them. According to Stern, to respond effectively to rule violations, you should
take heed of the following concerns:
Recognize problems and train
employees to do the same
The
worst thing an employer can do is disregard a complaint or rule violation.
Employees should be informed about what constitutes improper behavior and aware
of their active role in correcting it. It's important for management to create
an environment in which employees safe reporting concerns and to provide
personnel with the necessary resources to conduct investigations.
As
Stern says, "The reasons to conduct an investigation are almost endless.
They include but are not limited to harassment or discrimination, and they
don't require a formal complaint to initiate."
Stern
noted that most workplace problems go unreported, and if employers are not
monitoring company operations, issues may grow significantly by the time a
formal complaint is made, if one is made at all.
"Employers
should be vigilant about problems and act to correct situations before they
become worse," he added.
Uncooperative
employees often obstruct investigations, including by "reporting a concern
and asking that nothing be done, refusing to be interviewed, and giving vague
non-responses." A supportive workplace culture will promote cooperation.
Don't draw conclusions
prematurely or make legal determinations
A
perfunctory investigation can be worse than none at all. If you're hasty,
there's a good chance it'll come back to haunt you, and it's likely you'll
overlook crucial elements of the situation, or at least compromise your
timeline.
Employers
should prioritize completing investigations efficiently and with minimal
workplace disruption, but also with the utmost care. Often, the full story is
more than just a fleshed-out version of the initial complaint, and it's
impossible to know without conducting a thorough investigation. Expect your
first round of witness interviews and evidence reviews will unveil the need for
more.
"You
need to be ready to change course in the investigation or expand the scope
based on information obtained," Stern said. "At times, the
investigation may reveal other issues that will also need to be looked
into."
While
you must, of course, conduct your investigation with a sensitivity to potential
legal ramifications, remember that you are not in a position to make a legal
determination.
"You
cannot claim, 'His behavior was sexual harassment that created a hostile work
environment,'" Stern told Business News Daily. "Your role is instead
to determine if the behavior took place as described in the employee complaint
and whether it violated a company rule.
Always protect evidence
It
may sound obvious, but sensitive information needs to remain secure. This is
yet another non-negotiable measure. A lapse creates the risk of sabotage and
confidentiality violations. Stern advises taking measures to protect evidence
from destruction, especially in electronic form, which may be easily deleted or
removed.
Assess each situation
individually
What
unites effective workplace investigations are their rigor, not adherence to a
universal defined procedure or personnel structure. Be meticulous when
considering the unique nature of each investigation, determining who should
conduct it and how. It could be one person, a small group, or even a third
party.
"Make
sure you have someone with experience conducting investigations, and/or a
third-party resource who can be quickly engaged, especially for situations that
are legally complex, involve an executive, or are beyond the capabilities of
your internal staff," said Stern.
Communicate with the party
who made the complaint
If you don't inform
the responding party about the initiation, progress or results of the
investigation, you're mishandling the complaint.