You work in Human Resources for your organization and your office receives a complaint from a female employee. She alleges that her male supervisor, the Vice President of Communications, has made “inappropriate comments” to her and touched her in ways that made her feel “uncomfortable.” Is this employee alleging unlawful sexual harassment? What do you do? Do you have to investigate? How do you investigate a complaint against a high-level employee? What, if anything, does the employee handbook say? What does the law require? What interim measures should be taken? Does the investigation remain confidential? How do you take steps to prevent unlawful retaliation against the complaining employee? There are a lot of things to consider when investigating an employee complaint. Therefore, it is imperative that an investigation be conducted by someone knowledgeable on the law and the best practices for workplace investigations.
Investigations can be conducted in one of two ways: (1) internally by the employer’s HR or legal department; or (2) externally by an attorney. Although internal investigations occur, they can be viewed as less objective. An external investigation, however, is conducted by an attorney other than the employer’s attorney who regularly provides advice and counsel. Such an external investigator is impartial and more objective, having limited knowledge regarding the employer and its employees that could potentially influence the investigation.
Workplace investigations are not limited to investigating allegations of discrimination or harassment such as that described above. Investigations can also include wage and hour issues, employee attendance or performance issues, employee misconduct, or the violation of a workplace policy.
Each investigation is unique and requires an individualized plan. What is the scope of the investigation? Which witnesses should be interviewed? What documents or communications should be reviewed? An experienced investigator can devise and execute an appropriate plan.
If a workplace investigation is conducted, it must be done properly because the investigation itself may become part of a later lawsuit filed by the complaining employee. If the investigation is conducted by an external attorney, the attorney-client privilege arguably exists between the attorney and employer. However, the employer can choose to waive this privilege and offer information about the investigation. If conducted properly, the investigation may act as an affirmative defense to show the reasonable steps that the employer took in response to the employee’s complaint.