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Workplace investigations — Massachusetts

 

Employers typically conduct workplace investigations to comply with federal and Massachusetts legal requirements. Civil rights laws, anti-discrimination laws and health and safety laws all include requirements that employers investigate complaints and take appropriate action. Thus, employers have a legal duty to investigate and remedy complaints by their employees.

The benefits of conducting an investigation

Legal requirements aside, investigations yield a number of other practical benefits for an employer.

Defense to charge of harassment/hostile environment

Employers should investigate claims of harassment and disparate treatment for the simple reason that it is an affirmative defense to a hostile work environment claim. In fact, even if the employer discovers through its investigation that harassment occurred, it may protect itself with a strong anti-harassment policy and its well-documented investigation. 

To prove a discrimination claim based on harassment, the plaintiff must show that the employer knew or should have known of the harassment. Thus, when an employee complains of harassment, the employer is put on notice of the complaint and is consequently exposed to liability based on its knowledge. However, if the employer responds promptly and effectively to the complaint, it may fulfill its legal duty to promote a harassment-free workplace. Moreover, it may avoid harassment claims by handling them before they escalate to litigation.

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 (meaning, “something for something”) sexual harassment. Although employer knowledge and prompt action are not defenses to disparate treatment discrimination claims or quid pro quo sexual harassment claims (see Chapter 12: Discrimination), a proper investigation may still limit employer liability. If the employer immediately investigates a claim of discrimination, it may stop the discrimination and, as a result, limit the amount of the plaintiff’s damages. Also, the employer may be able to limit the scope of the lawsuit to only those issues that the plaintiff/employee raised during the internal investigation. For instance, if the employer is only aware of one alleged harasser and investigates that claim, the employee may not raise other unrelated discrimination claims in its lawsuit.

Limit claims relating to negligent retention

In Massachusetts, an employer may be found liable for negligently hiring and retaining an employee who it knew would engage in sexual misconduct. An employee’s negligent retention claim would be strengthened if the employer had received complaints about the individual, and not remedied the situation. Thus, an employer that has a policy and practice of investigating every claim of harassment or discrimination is in the best position to defend a subsequent lawsuit based on negligent retention.

Creation of a less litigious workforce

Generally, a proper investigation policy creates a less litigious workforce. Employees who feel that the employer takes complaints seriously will be less likely to sue later. Oftentimes, a plaintiff argues that the employer did not respond to his or her complaints so he or she was forced to seek a legal remedy.

Source of information

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 suited to make decisions about proper disciplinary action. In addition, the investigation provides information to the employer to determine whether to offer to settle the case, and whether to represent an individual manager or employee accused of harassment or discrimination.

Conducting internal investigations

Determining whether a complaint has been made

The employer should have a policy that describes the internal complaint procedure that employees should follow. Generally, in the absence of a clear policy, an employee complains when he or she reports a claim of harassment or discrimination to any member of the human resources department or to a manager or supervisor. An employer should remind all managers to report any employee complaint to human resources, no matter how minor it seems or how informally the employee raised it.  

The employer should also remind managers not to investigate complaints on their own.  Sometimes managers attempt to handle employee issues independently without recognizing the gravity of the consequences. An employer should conduct separate management training on how to handle employee claims of discrimination or harassment.

Receiving a complaint

When an employee complains internally, the employer should first determine whether an official investigation is necessary. To this end, the employer’s representative should have an initial conversation with the employee to understand the nature of his or her claims. The employer may want to obtain a complete statement from the employee to outline the scope of any investigation. This type of statement also prevents the employee from later claiming that she or he complained about issues that were never, in fact, brought to the employer’s attention. 

Upon receiving an internal complaint, the employer should promptly follow these steps:

  • Instruct the employee about the investigation - The employer should explain to the employee that it takes every complaint seriously, and that it will investigate the complaint according to its policy. It should then describe its policy to the employee. 
    The employer should also remind the employee that the employer will not retaliate against him or her for the complaint, and that the employee should contact the investigator immediately if he or she believes that he or she is the target of retaliation. Finally, the employer should tell the employee not to discuss the matter with other employees and while the employer will treat the investigation as confidential, it may need to discuss the matter with certain individuals to be effective.
  • 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 specifically that person did (include statements, improper conduct which is the subject of the complaint, and any reasons or context for the conduct)
    • where and when the conduct took place (including the first time, each subsequent time, and the last time the conduct took place)
    • the response of the complainant (Did the complainant indicate the conduct was objectionable? Did anyone else?)
    • witnesses to the harassment/discrimination (identify the witnesses’ names and what the witnesses may have seen or heard – and ask the complainant whether he told anyone about the improper conduct).
  • 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 the length of the interview. This document may become important evidence in a future legal claim. Remind the investigator to record only the facts as stated by the complainant and to avoid opinions or conclusions about the interview.
  • Do not ask the employee what he or she wants - The employee may not get the outcome she or he personally desires from the investigation. Do not set the employee’s expectations at this early stage.
  • Do not make promises or offer opinions:
    • Do not promise complete confidentiality.
    • Do not promise that the alleged wrongdoer will not know about the complaint.
    • Do not promise to keep the employee’s identity a secret from the alleged wrongdoer.
    • Do not tell the employee whether anyone believes him or her.
    • Do not promise to discipline the alleged wrongdoer.
  • Do not discipline the employee for reporting the complaint - Even if the employee has complained to the wrong person, do not indicate that the complaint could result in any sort of discipline for the complainant. A court could consider this type of action a form of retaliation for reporting the complaint (see Chapter 12: Discrimination). Likewise, employers must be mindful that third-party witnesses may submit their own complaints during the investigation, and these individuals must not be the target of retaliatory action by anyone with knowledge of the claims.

Identifying an investigator

An employer should identify individuals who have appropriate qualities and training to investigate internal claims. The investigator must be an individual who has experience, and who is able to be objective. Generally, an employer should have several qualified and trained investigators within the company. The employer must be mindful that every step it takes in an investigation may be admissible evidence in a lawsuit. Thus, the plaintiff may obtain any written materials from the plaintiff, and either party may call the investigator as a witness at trial.

If the employer conducts the investigation at the request or recommendation of an attorney, the employer may be able to argue that the investigative documents are shielded from production by the work product doctrine or the attorney-client privilege. However, courts generally do not give this argument much merit. Moreover, an outside attorney operating as a fact witness may be prevented from representing the employer in any lawsuit arising from the complaint. 

The employer often uses a human resources representative for investigations. Members of human resources are typically more impartial than members of management are, and they may be more likely to follow a standard procedure. However, if the employer uses a member of human resources for the investigation, any investigative documents will be discoverable.

The employer may also choose to use an outside consultant. Many human resources consultants are properly trained to handle workplace investigations, have the capacity to be impartial, are familiar with legal standards, and are able to effectively handle accusations against high-level managers.

Initial discussion with the alleged wrongdoer

The employer should ensure that two people are present to interview the alleged wrongdoer. If the alleged wrongdoer is a member of a collective bargaining unit, then he or she is entitled to have a union representative present during any interviews or investigations of him or her. However, the employer does not have to offer the alleged wrongdoer such representation unless he or she requests it. 

The initial interview of an alleged wrongdoer is a critical part of the investigation. In this interview, the alleged wrongdoer 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, and review relevant employer policies with him or her. In addition, the alleged wrongdoer may be told there is a possibility of disciplinary action if the complaint is found to be true, but that he or she will be given an opportunity to respond to the allegations and that the employer has not yet determined whether the alleged wrongdoer is guilty. 

Instruct the alleged wrongdoer to minimize contact with the complainant, and consider separating the complainant and wrongdoer during the pending investigation. The employer should also warn the alleged wrongdoer not to retaliate against the complainant, and to keep the matter confidential. Finally, the employer should advise the alleged wrongdoer that if he or she violates any of these instructions, the employer will consider it insubordination and possible grounds for termination.

Identifying witnesses and relevant documents

The employer should interview all individuals identified in the complaint, including all potential witnesses. In addition, the employer may want to interview employees who work closely with the accused individual. However, the employer should be careful when it interviews non-employee witnesses, as they are less likely to keep the matter private and may be less reliable. 

Discretion is critical in investigations of workplace claims. The employer should schedule witness interviews at a time and place so as not to draw attention to them. In addition, the employer should emphasize confidentiality to each witness.

To thoroughly investigate a claim, the employer should ask questions to understand the who, what, when, where, and how of each incident. It should keep detailed notes on each interview, and it should be sure to talk to both the accused and the complaining employee. If the investigation lasts more than two to three days, the employer should follow up with the complainant and keep him or her informed of the progress.

The employer should also collect any relevant files, documents or statistics that may help verify or disprove the allegations. In a sexual harassment case, for instance, the employer may want to review email correspondence between the parties. It may also want to review calendars maintained by the parties. Finally, the employer should review the personnel file of the accused, and determine whether he or she has been disciplined for similar conduct in the past. 

In a disparate treatment case, the employer should review files or records of employees who are “similarly situated” with respect to the complainant. Generally, the complainant will identify several individuals outside of his or her protected classification who he believes have been treated better by the employer. The employer should carefully review the files of similarly situated employees to determine whether the allegation is true. The employer may need to review:

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

Take immediate steps to stop wrongdoing

If the investigation lasts longer than one day, the employer should take immediate steps to temporarily remedy the wrongdoing. The employer should 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.

In taking these steps, the employer should avoid any appearance that it has already deemed the alleged wrongdoer at fault.

Preparing the investigation file

The investigation file should be complete, accurate, and thorough. Generally, a comprehensive investigation file includes:

  • a chronology of events
  • a list of all people involved or contacted
  • a list of all documents reviewed
  • all communications with witnesses
  • witness statements
  • documents that establish or refute the issues investigated
  • physical 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.

The employer should not include conclusions about credibility or the merits of the complaint, as the file may be admissible in a later lawsuit. 

Investigation files typically include a log of all complaints and actions in a matter. Keeping a complaint log is a good way to track complaints within a changing workplace. The log should include:

  • date of the initial complaint
  • name of complainant
  • type of claim
  • name of alleged wrongdoer
  • department/division involved
  • level of complaint (such as internal-informal, internal-formal grievance, lawsuit)
  • resolution and date
  • person assigned to investigate.

The employer should keep the investigation log confidential.

Concluding an investigation 

At the conclusion of an investigation, the employer will reach one of three conclusions:

  1. the wrongdoing actually occurred
  2. the wrongdoing complained of did not occur
  3. the evidence was inconclusive.

While an employer frequently has difficulty uncovering the truth, it should not automatically conclude that the evidence was inconclusive. To some extent, the employer should make decisions as to the credibility of witnesses, and should account for any inconsistencies in witness accounts. 

The investigator should carefully observe witnesses in interviews for signs of dishonesty – however, the investigator should be mindful that the signs of nervousness often parallel those of dishonesty. In addition, an investigator should consider the history of the complainant and the alleged wrongdoer in the workplace. If an alleged wrongdoer has repeatedly been accused of misconduct in the past, it may indicate that the current complaint is true. 

Finally, the employer must document its decision. Documentation should include a review of the complaint, each witness’s version of the facts, the employer’s conclusion, and an explanation for its reasons.