Although it is best practice for employers to conduct investigations of employee complaints or accidents, Minnesota employers often conduct workplace investigations because of federal and state statutorily-imposed requirements.
Indeed, under various civil rights and whistleblower protection laws, such as Title VII of the Civil Rights Act or Dodd-Frank, as well as health and safety laws, it is either required or good practice for employers to investigate complaints or accidents and take appropriate action. Recent court cases reflect additional civil rights protections and investigative requirements in the context of employers that receive federal funds to provide educational programs or activities (i.e. medical residency programs). Further, the wave of national movements (e.g., #MeToo, #TimesUp) on sexual harassment and gender-based and racial discrimination has spurred increased reporting, leaving employers with the complex task of investigating word against word credibility-based claims of discrimination and harassment. This national political and cultural shift places a premium on reliable, informed and effective workplace investigations.
As a practical matter, after a written or oral complaint is made by an employee regarding improper conduct, an affirmative duty may arise requiring the employer to 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 (reasonably should have known) of that conduct.
As discussed in this chapter, investigation of complaints yields a number of practical benefits for employers.
While the practical benefits of workplace investigations are often driven by legal compliance considerations, one essential benefit that an employer can derive from consistent application of policies and effective investigations is a commitment to the institutional values that promote a workplace environment that is healthy, safe and free from prohibited discrimination and harassment. Simply stated, showing humanity and care for the welfare of all employees is the key to effective employer responses. Compliance with civil rights laws and whistleblower policies should be the minimum expectation; implementing the company’s policies and conducting investigations in a manner that reflects the employer’s stated values goes much further in setting and reinforcing corporate culture and climate.
In the context of a workplace investigation, the manner in which the investigation is conducted will reflect institutional values. Attention to the details of implementation is vital, and the professionalism and nature of the interpersonal interactions with the investigator are as important as adherence to carefully considered policies. Effective implementation must incorporate a fluent understanding of not only the legal, but the practical, psychological and personal impacts of employer action or inaction. That holistic understanding should inform all steps of the investigative process from intake, interview practices, communication, documentation, and support during the process for all parties.
In addition to value of promoting institutional values of a workplace free from harassment or discrimination, prompt investigations into complaints of harassment or discrimination may later serve as an affirmative defense should there later be a legal claim, either as a result of a charge of discrimination with a local, state or federal agency or litigation. In other words, even if harassment or discrimination occurred, a strong anti-harassment, and anti-discrimination policy, a thorough investigation and prompt remedial efforts might allow the employer to avoid liability.
Generally, the plaintiff in a potential lawsuit against the employer must show that the employer knew or should have known about any harassment or discrimination which is the basis for the lawsuit. If the employer had a policy to redress complaints internally and the employee did not complain to the company through a variety of complaint mechanisms (e.g., via a complaint hotline, Human Resources, or to a member of management), the employee may not be entitled to pursue a claim. Likewise, if the employee complained and the employer promptly investigated and took the remedial action in response to the investigation findings, then the employer might have an affirmative defense to the harassment or discrimination complaint.
An investigation may also limit the employer’s liability exposure. Although a lack of employer knowledge and prompt action are not defenses to disparate treatment discrimination claims or quid pro quo (this for that) sexual harassment claims, 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 damages. Taking prompt action can be especially persuasive to a jury as a reason not to award punitive damages. Also, the employer may be able to limit the scope of the lawsuit to only those issues the employee raised during the internal investigation.
In the course of conducting an investigation of an employee’s complaint, the employer may well uncover evidence of wrongdoing by the complainant. Although it is unlawful for an employer to retaliate against the complainant in most circumstances, it is not unlawful for the employer to act on the information it uncovers.
For example, assume the company has a uniformly applied policy of terminating employees who make material falsifications on their applications and, in the course of investigating a failure-to-promote claim, it learns the complainant made such a falsification. Under those circumstances, it may not be unlawful retaliation to terminate the complainant because the employer is merely applying its policy uniformly. The effect may be to substantially reduce any back pay claim because no back pay would be owed for the period after the employee was legitimately terminated.
Care must be taken, however, to avoid a claim that the company went out of its way to investigate the complainant in reprisal for making the complaint. In addition, as part of an institutional commitment to encourage reporting of discrimination and harassment, the employer may choose to not pursue action against the complainant for the complainant's own wrongdoing.
An employee who is harassed or discriminated against may bring claims alleging that the employer negligently retained someone that it knew or should have known engaged in harassment or discrimination. Such a claim would be strengthened if the plaintiff could show that the employer had received several complaints about the offender and failed to take prompt action, including by failing to investigate the complaints.
Therefore, an employer that 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 if the prior investigations revealed the complaints were without merit. Alternatively, when faced with a complaint against an employee, an existing strong practice of investigating claims coupled with an absence of prior investigations involving the accused could reinforce the argument that the employer had no previous knowledge that a particular employee allegedly had a tendency to harass or discriminate.
Finally, investigations are also beneficial for the employer generally because when a complaint is filed, the employer may be able to implement preventive measures that deter possible future transgressions.
Generally, a proper investigation policy creates a less litigious workforce. Employees who have confidence the employer takes responsive action and investigates their complaints are often less likely to sue later. Many times, in the course of litigation, plaintiffs explain they would not be in court today if the employer had just treated them fairly after they raised their complaints.
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. Also, if a lawsuit ever arises out of the complaint, the investigation offers the employer some protection. The employer will also be in a better position to determine whether to offer to settle the case and whether to indemnify or offer legal representation to an individual manager or employee accused of harassment or discrimination.
The goals of a good investigation should include to:
The most effective investigations are those that follow thoughtful and informed policies, procedures and practices and are conducted by trained and experienced professionals. Given the many moving parts of a workplace investigation, advance consideration must be given to key elements of effective practice including:
Any time an employee makes make an allegation of harassment or discrimination to the specified person in the employer’s harassment policy (usually the human resources manager or other senior management) or reports the harassment or discrimination to management, that employee should be regarded as having raised a complaint. However, what about a scenario where the employee makes a complaint to a supervisor but asks the supervisor not to take any action? Has a complaint been made? Can the employer afford not to act on the information even though the reporting employee asks the employer to refrain from doing so? These are not easy questions. Their answers in a legal sense may depend on the nature of the information reported and the identity of the person receiving the information. From a human resources perspective, however, it is never prudent to ignore any report of harassment, discrimination, or suspected retaliation.
In particular, managers must be trained and reminded to report any complaint of harassment, discrimination, or retaliation immediately to the correct person, no matter how minor it seems or how informally it was raised. Managers should also promptly report any harassment or discrimination that they observe.
Managers should not investigate such complaints on their own unless they have been designated and properly trained to do so. Nor should they suppress information for fear that it will result in the termination of a valuable employee such as a star sales representative. It is important for managers (and everyone in the employer organization) to remember that in the long run, it will be better for the employer to find out the truth regarding such allegations, even if it is uncomfortable in the short run. It is valuable if all complaints are brought to a central forum, typically the human resources department, and that both informal and formal complaints are appropriately documented in order to ensure a consistent institutional response, track patterns and address climate and cultural concerns.
There is no one best way to conduct an investigation, although there are many ways to make mistakes. Given the complexity of these cases and the attendant legal impacts, it is always prudent to consult with counsel before embarking on an investigation, and as necessary, through the course of the investigation. The following summary illustrates common practices, but there is no one size fits all response. The key is to tailor the investigation to the context and circumstances, which can also involve considerations of privacy and cost effectiveness.
When a complaint is made, a productive initial conversation with the complainant is often 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.
Determining whether to engage an internal or external investigator is a very important decision with many potential 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 and trained investigators within the company, and may engage more than one investigator in any one investigation.
Many courts have held that whatever the employer does to investigate a claim of discrimination or harassment may be admissible in a lawsuit. Therefore, the written materials may be obtained by the complainant, 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 work product doctrine or the attorney-client privilege.
However, if the employer intends to rely upon the investigation as an affirmative defense, courts will generally not give this argument much merit. If the company reaches out to its regular outside attorney to conduct the investigation, it must consider that the attorney could be called to testify and may, not be available to represent the company in any subsequent lawsuit. In addition, if there is a concurrent law enforcement or regulatory investigation, the investigation records may be subpoenaed, the subject of a search warrant, requested by court order, or requested by a regulatory agency.
There are several potential investigators available to the employer:
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 the alleged wrongdoer is entitled to have a union representative present during any interviews or investigations. However, in most instances, the employer does not have to offer the alleged wrongdoer representation unless requested.
The initial interview of an alleged wrongdoer is a critical part of the investigation. The investigator should reiterate that the employer takes the allegations of every complaint seriously by fully investigating them consistently with its policy. The interviewer should inform the alleged wrongdoer of the allegations made 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 the employer will provide an opportunity to respond to all allegations and that the employer has not yet determined whether any violation of company policy has occurred.
It is usually best to instruct the alleged wrongdoer to minimize contact with the complainant immediately, and to inform 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, when appropriate, instructed to keep the matter confidential in order to respect privacy concerns, prevent rumors, and protect the integrity of the interview process. Finally, the alleged wrongdoer should be advised that any violation of these instructions will be considered as possible grounds for disciplinary action up to termination. It is usually best to incorporate all of these instructions and warnings in a confidential letter or memo to the accused.
It is normally important to interview all individuals involved with the complaint, including all witnesses identified by both the complaining employee and the accused wrongdoer. Employers also should consider interviewing all employees who work closely with the accused. However, care needs to be taken when interviewing nonemployee witnesses, as they are less likely to keep the matter private and may be less reliable. Schedule meetings at a time and place so that they will not attract attention. The investigator should explain the need for confidentiality to the witnesses, and ask questions designed to discover the "who, what, when, where and how" of the situation. The investigator should also document all interviews, keeping in mind that the investigative notes or other documents may become evidence in a future lawsuit, and be careful not to make unsubstantiated allegations or assessments. The investigator must be sure to talk to both the accused and the complainant. If the investigation lasts more than two to three days, the investigator should follow up with the complainant and keep the complainant informed of progress – reassuring the complainant 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 and emails between the complainant and the accused, or the complainant’s friends or supervisors. The employer should also acquire the personnel file of the complainant and the accused, desk files maintained by the supervisor of the accused, and investigation or discipline files for other individuals accused of similar conduct.
In a disparate treatment case, the employer will need to identify employees who are “similarly situated” with respect to the complainant. Obtain and review relevant files or records regarding these similarly-situated employees. Generally, the complainant will identify several individuals outside of the protected classification who are believed to have been treated better. The employer should then 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 the employer may need to review in this regard include:
Employer rules, policies, procedures, and instructions should also be reviewed in most investigations.
Finally, it is essential all electronic files that are or even may become relevant must be reviewed and saved. IT personnel should be immediately alerted to save any and all relevant documents and to ensure that relevant documents are not destroyed either intentionally or inadvertently in accordance with a routine record retention policy.
If the investigation will take more than one day, an employer should consider taking immediate steps to deal with the alleged wrongdoing – particularly any harassment. Consider:
However, the employer must be careful to avoid the appearance that the alleged wrongdoer has already been deemed guilty of the offense. Also, care needs to be taken to ensure that the burden of any interim remedial measures do not fall more harshly on the complainant, as that can give rise to a separate claim for retaliation.
The investigation file should be complete, accurate, and thorough. It is important to include:
Employers 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. The file should not contain opinions, advice, or any communications in any form from the employer’s attorney.
Good investigation files also include a log of all complaints and actions. Keeping the complaint logged is a good way to keep track of complaints within a changing workplace. The log also makes the employer aware of multiple claims against the same person or within the same group. The log should include:
It is crucial to always keep the log confidential.
As a consequence of the investigation, the investigator should reach one of three conclusions concerning a complaint of wrongdoing:
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 should also consider whether the complainant or alleged wrongdoer exhibited characteristics of lying (failure to make eye contact, squirming, internally inconsistent story, lack of details, etc.). 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 a pattern supporting a conclusion that the current complaint is true. Alternatively, a history of baseless complaints by the same complainant or against the same supervisor may indicate that the current complaint is not valid or that it may have been made for ulterior purposes.
Finally, the employer must document any decision reached. Documentation should include a review of the complaint, a summary of each witness’s version of the relevant facts, and the investigator’s conclusion with an explanation of reasons. It is usually important that the investigator not make any pronouncements about whether particular conduct violated the law because such a conclusion could be very damaging to the employer in a future lawsuit. A lot of objectionable conduct may be inappropriate or in violation of accepted employer norms but not so severe or pervasive as to be a violation of law. Thus, it is common to find that the conduct violated the standard of behavior expected of employees, but that it did not constitute a violation of the employer’s harassment policy.
Additional report-writing considerations for an investigator include:
The report should include an introduction as follows:
The chronology and substance of the investigation should be addressed as follows:
Consistent with the employer’s policy and protocols, consider whether to provide the parties with the opportunity to review a preliminary report in order to identify additional witnesses or sources of information, reconcile conflicts in information, and ensure the sufficiency of the investigation.
Depending on the scope of the investigator’s role, the analysis of the facts may include the following elements:
While these sections may not be included in the investigative report provided to the parties or the adjudicative body, they are important considerations to document and maintain in an investigative file:
Once a conclusion is reached about what occurred, the employer must take swift, appropriate action including but not limited to discipline, termination, warning, or conclusion of the investigation without action. It is usually a good idea to separate the investigation function from the task of deciding what to do with the results. Someone in human resources is much more likely than an outside investigator to understand the effects of particular remedial action in the workplace and to ensure that the employer is treating cases of similar severity in a similar manner. For this reason, it may be beneficial to request that an outside investigator not make any recommendations in the initial report. Once someone from human resources reviews the factual conclusions of the investigation, the investigator can then be questioned about any suggested remedial actions.
Any documentation issued to close out the investigation, whether or not discipline is issued, should remind all parties that the employer’s policy prohibits retaliation and any suspicions of retaliation should be reported and investigated promptly. It is also helpful at this stage to review the employer’s applicable policies with everyone involved in the investigation.