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Workplace investigations — Colorado

Investigating employee complaints

Employers often conduct workplace investigations because of constitutional or statutorily imposed requirements. Indeed, various civil rights and anti-discrimination laws, as well as health and safety laws, require employers to investigate complaints or accidents and take appropriate action. Therefore, after a written or oral complaint is made by an employee regarding improper conduct, an employer should investigate the allegations. Even when no official complaint is made concerning improper conduct, an employer may be under a duty to investigate if the employer has “constructive knowledge” (meaning they reasonably should have known) of that conduct.

Defense to charge of harassment or hostile environment

It is critical for an employer to investigate claims of harassment, as an investigation can be used as an affirmative defense to a hostile environment harassment charge. In other words, even if harassment occurred, a strong anti-harassment policy and an effective investigation might prevent the employer from being liable. Generally, the plaintiff in a potential lawsuit against the employer must show that the employer knew or should have known about any harassment that is the basis for the lawsuit. If the employer had an anti-harassment policy with a complaint procedure in place and the employee did not complain, he or she may not be entitled to pursue a claim. Likewise, if the employee complained and the employer took prompt remedial action, then the employer might also have a defense to the harassment complaint.

Limit liability for discrimination or quid pro quo sexual harassment

An investigation may also limit the employer’s liability for discrimination or quid pro quo sexual harassment. Quid pro quo means “something for something” and, in the sexual harassment context, entails a situation where a management level or higher ranking employee offers advancement or other employment perks in exchange for sexual favors. 

Although employer knowledge and prompt action are not defenses to discrimination claims or quid pro quo sexual harassment claims (see Chapter 18: Discrimination), a proper investigation can still limit employer liability. If the employer immediately investigates any claims of discrimination, it may stop the discrimination and thus limit the amount of the plaintiff’s damages – especially punitive damages. Also, the employer may be able to limit the scope of the lawsuit to only those issues the plaintiff/employee raised during the internal investigation. For instance, if the employer is only aware of one alleged harasser and investigates that claim, that employee may not be permitted to raise other claims in a lawsuit.

Limit claims relating to negligent retention

If an employee is harassed or discriminated against, he or she may bring a claim alleging that the employer negligently retained someone that it knew or should have known was a sexual harasser or discriminator. Such a claim would be strengthened if the plaintiff could show that the employer had received several complaints about the individual who harassed or discriminated against him. Thus, an employer who has a policy and a practice of investigating every claim of harassment or discrimination is in the best position to defend a subsequent lawsuit for negligent retention. Alternatively, if there were no complaints, the employer could argue that it had no reason to know that this particular person had a tendency to harass or discriminate.

Creates a less litigious workforce

Generally, a proper investigation and complaint-communication policy creates a less litigious workforce. Employees who feel that the employer takes their complaints seriously and investigates their complaints will be less likely to sue later. Many times, a plaintiff will say that, if the employer had just treated him or her right after he or she raised his or her complaints, he or she wouldn’t be in court today. Investigations are beneficial for the employer generally because, when a complaint is filed, the employer knows to keep an eye on the alleged wrongdoer for possible future transgressions.

Investigation is a good source of information about the complaint

Finally, an investigation is the employer’s first and most reliable source of information about the complainant’s allegations. Based on the investigation, the employer will be better able to make decisions about what disciplinary action should take place. As previously noted, if a lawsuit ever arises out of the complaint, the investigation better protects the employer. The employer will also be in a better position to determine whether to offer to settle the case and whether to defend an individual manager or employee accused of harassment or discrimination.

Internal investigations

Determining whether a complaint has been made

An employee has raised a complaint of harassment or discrimination any time he or she or someone on the employee’s behalf makes such an allegation to anyone in the human resources department or to any manager or supervisor. In particular, managers must be trained to immediately report any complaint of harassment, discrimination or retaliation for a prior complaint to human resources, no matter how minor it seems or how informally it was raised. Managers should not investigate such complaints on their own. It is important for managers (and everyone in the employer’s organization) to remember that, in the long run, it will be better for the employer to find out the truth regarding such allegations. That way, if there is a problem in the workplace, the employer can address the situation. Employers should include a complaint or communication procedure in their policies that provides employees a means by which a complaint may be made. In addition, employers should have a written policy that prohibits retaliation in any form against an employee who brings a complaint. 

Receiving a complaint

When a complaint is made, a productive initial conversation with the complainant is a critical first step in determining whether an official investigation may be necessary. Likewise, obtaining a complete and accurate statement regarding the complaint is essential to determine the extent of the investigation required. The following steps should be taken promptly in order to ensure that an investigation is effective.  

  • Instruct the complainant regarding the investigation - The complainant should be told that his or her complaint is treated very seriously by the employer and that it will be investigated according to employer policy (and describe any applicable policy). The complainant should also be told that he or she will not be subjected to adverse action or retaliation for coming forward and that the complainant should contact the investigator immediately if he or she feels that he or she is being retaliated against for any reason. Finally, the employee delivering the complaint should be asked not to discuss the matter with others and that, while the investigation will be treated confidentially, the investigator will discuss the matter with those necessary to the investigation or any action taken as a result of the investigation. If he or she is willing, have the complainant write out a signed, dated complaint, indicating:
    • who harassed/discriminated against the complainant (including the name and work relationship to complainant)
    • what that person did (include specific statements, improper conduct that is the subject of the complaint and what the complainant believes may have initiated the conduct)
    • where and when the conduct took place (including the first time, each subsequent time and the last time the conduct took place)
    • how the complainant responded (Did the complainant indicate the conduct was objectionable? Did anyone else?)
    • witnesses to the harassment/discrimination (have the complainant identify the witnesses’ names and what the witnesses may have seen or heard – and ask the complainant whether he or she told anyone about the improper conduct).
      • Note: Employees can make internal complaints without making a written complaint.  
  • Take detailed notes of the conversation with the complainant - Include the name of the interviewer, date, time and location of the interview, who was present and length of the interview. This document may become an important piece of evidence in the event that the complainant or the alleged wrongdoer sues the employer. It is important that the interviewer document only the facts as stated by the complainant and not his or her opinions or conclusions about the interview.
  • Do not ask the complainant what he or she wants - Asking the complainant about the outcome he or she hopes to achieve as a result of the complaint may set him or her up for disappointment. At this stage, there is no need to set his or her expectations. 
  • Do not make promises or offer opinions.
  • Do not promise complete confidentiality.
  • Do not promise that the alleged wrongdoer will not come to know of the complaint.
  • Do not promise to keep the complainant’s identity a secret from the alleged wrongdoer.
  • Do not tell the complainant whether anyone believes him or her.
  • Do not promise that the alleged wrongdoer will be disciplined.
  • Do not discipline the complainant for reporting the complaint

Even if the complainant has complained to the wrong person or gone “outside the chain of command,” do not indicate that the complaint could result in any sort of discipline for the complainant. This may be considered unlawful retaliation for reporting the complaint (see Chapter 12: Discrimination). Likewise, employers must be mindful that third-party witnesses interviewed during the investigation might submit their own complaint during the interview and that adverse employment decisions towards such witnesses may not be based on their complaints or participation in the investigation.

Identifying an investigator

Determining whether to engage an internal or external investigator is a very important decision with many legal ramifications. The chosen investigator must be well trained and impartial. A wrongly chosen or biased investigator may discourage candid interviews or even the reporting of illegal conduct. An employer should choose an investigator who is experienced, properly trained and objective. Generally, an employer should have several qualified, trained investigators within the company and may engage more than one investigator in any one investigation.

There are several potential investigators available to the employer. 

  • Human resources representative -The employer’s HR representative should be trained regarding proper procedure and can typically be impartial, thereby obtaining more accurate testimony from witnesses.  However, if the employer uses an HR representative, the investigation may be obtained by a plaintiff in the event a lawsuit is filed.
  • In-house attorney or outside attorney - Either one of these choices can be properly trained regarding procedure, impartial, more familiar with legal ramifications and can better handle accusations against high-level managers. However, using an attorney does not mean that the investigation may not be obtained in the event of a lawsuit. Also, an outside attorney operating as a fact witness will be prevented from representing the employer in any lawsuit arising from the complaint.
  • Outside consultant - Another choice for the employer would be to obtain an outside consultant. The consultant can be properly trained to handle the situation, will be impartial, will be familiar with legal ramifications and will be able to deal with accusations against high-level managers.
    • Note: Everything that the employer does to investigate a claim of discrimination or harassment may be admissible in a lawsuit. Thus, the written materials may be obtained by the plaintiff and the person who conducted the investigation may be called upon to testify. If the investigation is conducted at the request or recommendation of an attorney, the employer may be able to make an initial argument that the investigation is protected by the attorney-client privilege.  However, courts generally will not give this argument much merit.

Initial discussion with the alleged wrongdoer

It is advisable to have two people interview the alleged wrongdoer in order to ensure that there is a witness to the discussion and, specifically, to any remarks the alleged wrongdoer may make. “If the alleged wrongdoer is a member of a collective bargaining unit, then he or she is entitled to request to have a union representative present during an investigatory interview of the wrongdoer (or interviewee) if the interviewee reasonably believes the interviewee may receive discipline as a result of the investigatory interview or investigations of him or her. However, the employer does not have to offer the alleged wrongdoer such representation, unless otherwise required by an applicable collective bargaining agreement unless he or she requests it. If no union representative is available at the time of the requested interview, the interviewee can choose to continue with the interview without union representation or decline to be interviewed understanding the employer’s investigation may move forward without the interviewee providing his or her information.” The initial interview of an alleged wrongdoer is a critical part of the investigation and he or she should be told that the employer takes the allegations of his or her conduct seriously by fully investigating them consistent with its policy. The interviewer should inform the alleged wrongdoer of the allegations against him or her and review relevant employer policies with him or her. In addition, the alleged wrongdoer may be told that there is a possibility of disciplinary action if the complaint is found to be true, but he or she will be given an opportunity to respond to all allegations and the employer has not yet determined that the alleged wrongdoer is guilty. 

Instruct the alleged wrongdoer to immediately minimize contact with the complainant and warn the alleged wrongdoer that they may be separated during the investigation. The alleged wrongdoer should be given a strict warning not to retaliate against the complainant and instructed to keep the matter confidential in order to protect his or her privacy, prevent rumors and protect the integrity of the interview process. Finally, the alleged wrongdoer should be advised that, if he violates any of these instructions, the employer will consider it insubordination and possible grounds for termination.

Identifying witnesses and relevant documents

It is important to interview all individuals involved with the complaint, including all witnesses identified by the complaining employee. Companies should also consider interviewing all employees who work closely with the accused. However, be careful interviewing non-employee witnesses, as they are less likely to keep the matter private and may be less reliable. Schedule meetings at a time and place such that the meetings will not attract attention. Explain the need for confidentiality to the witnesses and ask questions designed to discover the who, what, when, where and how of the situation. Document all interviews, keeping in mind that this documentation may be admissible in a future lawsuit, so be wary of making unsubstantiated statements or hasty opinions. If the investigation lasts more than two to three days, follow up with the complainant and keep him or her informed that the investigation is making progress – reassure him or her that the employer is looking into the matter.

Next, collect any relevant files, documents or statistics that may help verify or disprove the allegations. In a sexual harassment case, for instance, review any notes, calendars and diary entries maintained by the complainant, including correspondence between the complainant and the accused or the complainant’s friends or supervisors. The personnel file of the accused should be acquired, desk files maintained by the supervisor of the accused and investigation or discipline files for other individuals accused of similar conduct.

In a discrimination claim, obtain and review certain files or records regarding employees who are “similarly situated” with respect to the complainant. Generally, the complainant will identify several individuals outside of the protected classification whom he or she believes have been treated better than he or she has. The employer should pull the files of those individuals, as well as employees whom the complainant’s supervisors feel are similarly situated with respect to the complainant. Files that may require review include:

  • personnel files
  • payroll or compensation files or records
  • hiring, promotion or transfer records
  • evaluation forms
  • reduction in force plans or termination statistics. 

Employer rules, policies and procedures should also be reviewed in most investigations.

Take immediate, temporary steps to stop any wrongdoing

If the investigation will take more than one day, take immediate steps to deal with the alleged wrongdoing – particularly any harassment. Consider:

  • giving the complainant the option of taking paid leave from work
  • giving the complainant the option of moving to a different work location on a temporary basis
  • instructing the alleged wrongdoer not to talk to the complainant
  • changing the supervisory reporting structure.

Be careful to avoid the appearance that the alleged wrongdoer has already been deemed guilty of the offense or that the complainant is being punished in any way.

Preparing the investigation file and log

The investigation file should be complete, accurate, thorough and include:

  • a chronology of events from allegations to completion
  • a list of all people involved or contacted
  • a list of all documents reviewed
  • all communications with those involved
  • witness statements
  • documents that establish or refute the issues investigated
  • physical/electronic evidence
  • investigator’s reports
  • documentation of results or remedial actions
  • a summary of the allegations and responses
  • a complete record showing the employer’s prompt and appropriate action.

Companies should not include conclusions about credibility or the merits of the complaint, as the file may be admissible in a later lawsuit. Instead, the file should only contain objective, fact-finding information.

Concluding investigations

As a consequence of the investigation, the employer should reach one of three conclusions concerning a complaint of wrongdoing:

  1. that the wrongdoing actually occurred
  1. that the wrongdoing complained of did not occur
  1. if the employer is truly unable to determine whether the wrongdoing occurred, it can find that the evidence was inconclusive. 

A determination that evidence is inconclusive, however, should not be used as a means of avoiding a difficult decision. In determining whether the complained-of conduct occurred, the investigator should evaluate the credibility of all witnesses, considering whether the complainant’s story or the alleged wrongdoer’s story is consistent with the stories provided by other witnesses.

The investigator should determine whether the complainant and the alleged wrongdoer were cooperative or appeared to be withholding information and consider whether the complainant or alleged wrongdoer exhibited characteristics of lying (failure to make eye contact, squirming, internally inconsistent story, lack of details). In addition, an investigator might consider the past history of the complainant and the alleged wrongdoer.

Even if past complaints against the alleged wrongdoer were investigated and found to be inconclusive, multiple complaints may indicate that the current complaint is true. Finally, the employer must document any decision reached. Documentation should include:

  • a review of the complaint
  • each witness’s version of the facts
  • the employer’s conclusion with an explanation for its reasons.

Post-investigation

Once a conclusion has been reached, the employer must then decide what remedial action, if any, should be taken. Action may include such things as:

  • disciplining the alleged wrongdoer
  • terminating the alleged wrongdoer
  • taking action to ensure that the complainant and alleged wrongdoer no longer have contact with each other.