August 20, 2018
Author: Lisa F. Joslin, Esq.
Organization: Gleason, Dunn, Walsh & O’Shea
As we all know, charges of harassment and discrimination are almost commonplace these days in companies nationwide. As a result, employers must take steps to avoid and to protect themselves against such charges, or risk costly litigation, adverse verdicts, bad publicity and the inevitable decline in productivity. The most effective methods for avoiding and protecting against harassment and discrimination charges include: (1) adopting a comprehensive anti-harassment and anti-discrimination policy, (2) ensuring that the policy is well-know to all employees and vigorously enforced by the employer; and (3) when faced with an allegation or report of harassment or discrimination, conduct a prompt and thorough investigation.
The value of a prompt and effective response to knowledge of harassment and discrimination cannot be overestimated. An employer will improve employee relations, reduce the risk of liability, and assure to any judge or jury that it took \"prompt remedial action\" when put on notice of such allegations.
These materials are designed to provide a general understanding of the risks and obligations associated with investigations, as well as practical guidelines and suggestions for conducting them. While the guidelines and suggestions are focused primarily on issues of harassment and discrimination, they are largely applicable to all types of workplace investigations.
II. LEGAL CONSIDERATIONS
A. United States Supreme Court.
- In 1998, the nation’s highest Court made clear that when faced with knowledge of possible workplace sexual harassment, an employer may effectively shield itself from direct liability by taking \"prompt remedial action reasonably calculated to end the harassment\" (Faragher v. City of Boca Raton, 524 U.S. 775 ; Burlington Industries v. Ellerth, 524 U.S. 742 ).
- The Court clarified the two grounds for imputing liability to an employer for workplace harassment – one pertaining to co-worker harassment, and the other pertaining to supervisor harassment.
- Co-worker Harassment: An employer may be held directly liable for harassment when the employer knew or should have known about the harassment and failed to take remedial action. This form of liability generally is applicable to harassment by a co-worker.
- Supervisor Harassment: Employers are strictly liable (under a theory of vicarious liability) for supervisor harassment which culminates in a \"tangible job action\" (e.g., demotion, reduction in pay, involuntary transfer, certain forms of discipline, termination), unless they can establish a two-part affirmative defense:
a. that the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and
b. that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to avoid harm otherwise.(See Faragher, supra at 807-08).
B. New York State Human Rights Law
- Under the New York Human Rights Law, liability will be imposed where the employee proves that it acquiesced in or condoned the harassment or discriminatory conduct (Father Belle Community Ctr. V. State Div. of Human Rights, 221 AD2d 44 [4th Dep't 1996]).
- \"Condonation contemplates a knowing, after the fact forgiveness or acceptance of an offense\" and \"[a]n employer's calculated inaction in response to discriminatory conduct may, as readily as affirmative conduct, indicate condonation\" (Bennett Progressive Corp., 225 F. Supp.2d 190, 210 [NDNY 2002]).
- A \"sham\" investigation will be evidence of employer condonation (Nestler v. Chartwell's Dining Services, et al., 02-CV-1115 [NDNY 2004]).
C. EEOC's Policy Guidance on Current Issues on Sexual Harassment
- The EEOC's Policy Guidelines provide that \"When an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly\" (8 Fair Employment Practices, Labor Relations Reporter [BNA], at 405:6700).
- Employers should promptly conduct interviews of:
- Alleged harasser;
- Employees identified by the complainant as potential witnesses;
- Employees identified by alleged harasser as potential witnesses; and
- Employees who may be able to provide information necessary to determine the truth of the allegations.
D. When Does the Duty to Investigate Arise?
1. Generally, the employer's duty to investigate and take prompt and effective remedial action arises whenever the employer \"knew or should have known\" of the harassing or discriminatory conduct.
2. Actual Knowledge
a. While courts agree that an employee's complaint of sexual harassment can trigger the employer's duty to investigate and take corrective action, courts disagree on to whom a complaint must be made in order to put the employer on notice.
(1) Some courts have ruled that only a complaint to someone with authority to address the problem will sufficiently place the employer on notice.
(2) Others ruled that only the individuals identified in a properly drafted policy are sufficient to the employer on notice of harassment and discrimination.
(3) Most agree that discussing harassment with coworkers won't do it.
(4) Reporting it to a low-level supervisor might do it – but not always.
(5) What is clear is that employers do not want to guess what a particular judge or jury would decide based on the facts and circumstances presented. It goes without saying - err on the side of caution.
b. Courts also disagree on how much information is required to put the employer on notice of harassment and discrimination.
(1) Reporting \"personal problems\" without further explanation generally is not sufficient to trigger a harassment or discrimination investigation (although employers would be wise to check into it nonetheless).
(2) Reporting \"harassment\" (without reference to it being sexually, racially motivated, etc.) may or may not do it, depending on the surrounding circumstances.
(3) If an employee identifies specific acts or comments which reasonably should be considered unlawful (e.g., racial epithets, sexual remarks or gestures, age-based comments), the employer's duty to investigate will be triggered – regardless of any label placed on the conduct by the complainant.
3. Constructive Knowledge
a. While the employer is not expected to be clairvoyant, it could be held liable for conduct it did not know about if a court determines that it should have known about the conduct \"upon reasonably diligent inquiry.\"
b. The Supreme Court ruled that an employee can prove notice to the employer by showing that \"the harassment was pervasive enough to charge the employer with constructive knowledge\" (Faragher v. City of Boca Raton, 524 U.S. 775 ).
c. Pervasive conduct found to put an employer on constructive notice of sexual harassment includes:
(1) Repeated sexual conversations among employees which were overheard by supervisors.
(2) Sexual graffiti referring to an employee in several places throughout the workplace.
(3) Supervisor witnessing sexually-explicit remarks, jokes and gestures on more than one occasion.
(4) Open and notorious inappropriate remarks, whistling or touching.
d. Employers can protect themselves from liability for hostile work environment sexual harassment based on a finding of constructive discharge by adopting, publishing and enforcing a policy prohibiting harassment and discrimination.
(1) Employers having a comprehensive policy with a complaint procedure and alternative avenues for redress generally are entitled to rely on the mechanisms instituted.
(2) The employer must demonstrate employee knowledge of the policy and reporting procedures.
(3) If employees chose not to avail themselves of the procedural framework provided, no constructive knowledge will be found.
E. What Constitutes \"Prompt Remedial Action\"?
1. In determining whether an employer took \"prompt remedial action\" sufficient to avoid liability, courts examine both the investigation itself and any corrective action taken as a result of the investigative findings or conclusions (if warranted).
2. An \"effective\" investigation is one that is: (1) commenced promptly upon notice of alleged harassing or discriminating conduct; (2) conducted thoroughly and comprehensively by appropriate personnel; and (3) demonstrates a reasonable conclusion based on the investigator's findings.
3. Appropriate corrective action necessarily depends on the circumstances presented – including the severity and/or pervasiveness of the conduct, and whether the behavior is corroborated by others and/or admitted by the harasser.
a. Remedial steps are not always measured by the extent to which the harasser is disciplined.
b. Corrective action often is found \"effective\" when it stops the alleged conduct, or appears \"reasonably calculated\" to end it.
4. When the Complainant will not Cooperate
a. The employer's duty to investigate is not obviated if the complainant refuses to cooperate in the investigation.
b. Although an employee does not have a legal obligation to cooperate in an employer's investigation, \"the reasonableness of the employer's attempt to rectify harassment is measured against how much it knows or should have known\" (Perry v. Harris Chernin, Inc., 126 F.3d 1010 [7th Cir. 1997]).
c. Where the complainant does not participate in the investigation, the extent of information that an investigation should reasonably uncover, and the employer's corresponding ability to address the allegations, will be reduced accordingly.
5. In the Absence of Corroboration
a. Even where an employer is unable to corroborate an employee’s allegations of harassment or discrimination, the employer can (and should) take some form of remedial action.
b. Remedial action need not be disciplinary in nature.
Rather, the employer may:
(1) Take steps to minimize the risk of future similar allegations.
(2) Remind the alleged harasser of the company’s policy prohibiting harassment and discrimination.
(3) Warn the alleged harasser that any retaliatory action taken against the complainant would lead to immediate dismissal.
(4) Redistribute the company’s policy.
(5) Renew sexual harassment and discrimination training.
6. The Anonymous Harasser
a. A prompt and thorough investigation will shield an employer from liability even where the identity of the harasser could not be determined – and thus, no disciplinary action could be taken.
b. Employers should Interview every employee and/or witness in the department or at the location of the alleged harassment, and make other attempts to determine the harasser’s identity.
c. Remedial action may include redistribution of anti-harassment policy, renewed training requirements, and a reiteration of the company’s policy against retaliation for complaining of sexual harassment.
d.Employers must take any and all employee complaints of harassment seriously, as the employer’s initial reaction to a report of harassment likely will pave the way (for better or for worse) for future relations with the complainant, harasser and other company employees.
7. When Harassment Stops After Complaint.
a. Even if the alleged harassment has ceased, employers must take some form of prompt remedial action, such as renewing sexual harassment training, redistributing the sexual harassment policy, and/or counseling or taking disciplinary action against the harasser.
b. Courts have ruled that the mere fact that the harassment stops after an employer is notified does not require a finding that the employer acted appropriately.
c. This is especially true if the complainant resigns before or shortly after the employer is notified of the harassment. The complainant’s absence from the workplace does not obviate the need to take appropriate corrective action.
d. Indeed, the complainant’s absence could be used to demonstrate that the workplace was so intolerable that the complainant was forced to resign (“constructive discharge”).
F. Potential Liability to Alleged Harassers and Witnesses
1. While most employers understand that the failure to investigate and remedy allegations of harassment can expose them to liability to a victim of harassment, many do not realize that their response to such allegations may expose them to liability to the alleged harasser and/or any other witness interviewed in the process.
2. Invasion of Privacy
a. Due to the inherently “sensitive” nature of sexual harassing conduct, investigative interviews often involve an exploration of intimate or delicate aspects of personal conduct.
b. Questioning an employee (be it the accused, the accuser or a witness) concerning activities that are not sufficiently related to their job performance, workplace behavior or relations with the accused or accuser may constitute an unjustified invasion of privacy.
c. Inappropriately revealing information obtained during an investigation also may lead to liability for invasion of privacy.
d. Employers must be mindful of any expectation of privacy created by their written or oral policies and statements.
e. Public sector employers must consider constitutional privacy rights.
f. Regardless of their source, privacy rights often involve a balancing of interests.
g. A well recognized defense to a claim of invasion of privacy is consent. Through comprehensive policies and written consents, employer often can defuse any expectations of privacy. (See e.g., previous discussion pertaining to an effective computer and internet policy).
a. Mishandling an investigation could lead to liability for defamation to the accused or the accuser.
b. Inappropriately revealing information obtained during an investigation may lead to defamation claims by anyone interviewed in the process.
c. Employers should be mindful that publishing “defamatory” statements pertaining to one’s work performance or conduct may lead to strict liability for any damages claimed.
4. To protect against claims of defamation or invasion of privacy, employers should:
a. Develop policies and consent forms to prevent any expectations of privacy;
b. Initiate investigations only on the basis of documented factual allegations;
c. Narrowly confine the scope of any investigation to what is reasonable and necessary to determine the facts and protect the employer’s legitimate interests; and
d. Keep the information obtained confidential to the extent possible, sharing it only with those having a compelling need-to-know.
5. False Imprisonment
a. False imprisonment is the willful detention of a person without consent or legal justification.
b. During a workplace investigation, the greatest danger of a claim for false imprisonment arises during the interview of the alleged harasser.
c. Employers have the right to interview employees regarding conduct connected with work, and to require cooperation as a condition of continued employment.
d. However, employers do not have the right to detain an employee against his or her will, either physically or through verbal threats. Unlawful detention may be accomplished by violence, threats, or through any means that restrain a person from moving from one place to another.
6. Concerted Activity
a. Section 7 of the National Labor Relations Act (NLRA) protects the right of all employees (not just the unionized ones) “to engage in . . . concerted activities for the purpose of . . . mutual aid or protection . . .”
b. If an employee (be it the accused, accuser or a witness) demands that s/he be accompanied during an interview, employers may not discharge or otherwise discipline him/her for asking that another employee be present.
c. However, employers do not necessarily have to honor the request for someone to be present.
7. Right to be Accompanied by Coworker during Interview
a. In 1975, the United States Supreme Court recognized another aspect of employee rights under Section 7 of the NLRA (NLRB v. J. Weingarten, Inc., 420 U.S. 251 ).
b. The Court recognized that in a union setting, the presence of a coworker at an investigatory interview is protected by the NLRA. After this ruling, an employee may demand that a coworker accompany him/her to an investigative meeting they reasonably believe will result in disciplinary action.
c. Failure to honor this right constitutes interfering with, restraining or coercing employees in the exercise of their Section 7 rights.
d. In 2000, the NLRB ruled that Weingarten Rights also apply to non-union employees (Epilepsy Foundation of N.E. Ohio, 331 NLRB 92, 164 LRRM 1233 ). However, in 2004, this decision was overruled in In re IBM, 341 NLRB 1288 (2004), in which it was held that Weingarten Rights do not apply to non-union employees.
e. While the employer generally is required to tolerate the presence of a third party employee in an investigatory meeting, if demanded by the employee, the employer has no obligation to publicize this right, and an need not allow the third party to participate in the investigative interview.
8. Banner Health System Case
a. In July 2012, the NLRB found that a private employer violated the NLRA by asking an employee who was the subject of an internal investigation to refrain from discussing the matter during the course of the investigation (Banner Heath System, 358 NLRB No. 93 [July 30, 2012]).
b. The Human Resources Manager in Banner Health testified that she frequently told employees not to discuss investigations during their pendency. The Board concluded that this instruction violated Section 8(a)(1) of the NLRA, because the statement. “viewed in context, had a reasonable tendency to coerce employees, and so constituted an unlawful restraint on Section 7 rights.”
c. The Board further held that, “to justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights.”
d. The Board ruled that, in order to properly justify a direction to keep the investigation confidential, the employer must “first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover up.”
e. A blanket justification that confidentiality is required to preserve the “integrity” of the process is not sufficient to meet the employer’s burden.
f. While this does not appear to be a total prohibition on seeking confidentiality during an investigation, employers wishing to ask for it must be prepared to demonstrate one of the above circumstances, or another legitimate business interest.
g. This decision applies equally to unionized and nonunion settings.
9. Fair Credit Reporting Act (FCRA) Problems.
a. In 1999, the FTC issued the infamous “Vail letter” stating that “outside organizations utilized by employers to assist in their investigations of harassment claims” are “consumer reporting agencies,” and that oral or written reports resulting from their harassment investigations are “most likely investigative consumer reports” under the FCRA.
b. As a result, investigations by third parties (law firms, private investigators and consultants) became subject to certain stringent notice and disclosure requirements under the Act.
c. The Fair and Accurate Credit Transaction Act of 2003 (FACT), signed into law on December 4, 2003, nullifies the Vail Letter, at least in part, by specifically excluding from the definition of a consumer report third-party reports from an investigator to an employer related to:
(1) suspected misconduct relating to employment; or
(2) compliance with federal, state or local laws and regulations, or preexisting written employer policies (including anti-harassment policies).
10. Polygraph Tests
a. Employers should not consider using a polygraph test to determine the truthfulness of any statement made during an investigation.
b. Under New York Labor Law §735, it is unlawful for any employer to administer a psychological stress evaluator examination, which is a test that purports to determine truthfulness based on vocal fluctuations and vocal stress of the employee being questions.
c. Labor Law §738 provides a private right of action by an employee adversely affected by such an evaluation.
d. With limited exceptions, the Federal Employee Polygraph Protection Act (29 U.S.C. §2001 et seq.) essentially bans the use of polygraphs in most private employment settings.
III. POLICIES AND TRAINING
A. As is mentioned in the materials pertaining to employment handbooks, the importance of a thorough and comprehensive policy prohibiting harassment and discrimination cannot be overstated. Thus, for additional reference, the information is restated here.
B. Policies Prohibiting Harassment and Discrimination
a. Employers should have an anti-harassment policy for the following reasons:
(1) The Supreme Court made it clear that an effective anti-harassment policy will assist an employer in establishing its affirmative defenses.
(2) A policy sends a strong message that harassing conduct has no place in the workplace, and encourages people to report inappropriate behavior before a hostile environment is created or a tangible employment action is taken.
(3) A good policy sends the message to management that complaints of inappropriate conduct (or incidents of witnessed conduct) must be taken seriously and addressed promptly.
(4) If effectively communicated to all employees, a policy can provide a defense to hostile work environment claims –namely: the employer has in place a “reasonable avenue of complaint.”
b. A written policy should include the following:
(1) A detailed statement of prohibited conduct;
(2) Two or more highly ranked individuals to which complaints may be directed.
(a) If possible, include at least one female, due to the inherently sensitive nature of sexual harassment claims.
(b) Employees must be given an alternative to their supervisor.
(c) Avoid designating all managers as complaint recipients, as it would be too easy for an employee to allege that casual remarks to a supervisor actually constitute a complaint.
(3) Procedures for making and resolving sexual harassment, discrimination and retaliation complaints;
(4) Assurance of remedial action, if warranted;
(5) Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible under the circumstances (without promising absolute confidentiality);
(6) Assurance that the company will not engage in or tolerate retaliation against any employee for making a good faith complaint of harassment, or for providing information relating to such complaints during an investigation; and
(7) Penalties for misconduct.
a. An anti-harassment and discrimination policy should be accompanied by an education and training program.
C. The standards governing claims of sexual harassment apply equally to all forms of unlawful harassment.
1. As stated above, the U.S. Supreme Court made clear in the matters of Faragher and Ellerth that employers can be held vicariously liable for sexual harassment by a supervisor.
2. The standards created by Faragher and Ellerth are not limited to sexual harassment, and apply equally to claims of harassment on the basis of race, color, religion, national origin, age, disability or protected activity.
3. The EEOC expressly stated this position in its Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 21, 1999).
4. Employers must expand their anti-harassment policies and complaint procedures to cover all forms of unlawful harassment.
1. It is clear that in order to avoid liability, employers must do more than distribute a well-worded policy.
a. Employers must ensure that that their policies prohibiting harassment and discrimination are known and understood by all employees.
b. The most effective method to ensure knowledge and understanding is to provide some form of harassment and discrimination training to all employees.
2. All employees must be trained concerning the following:
a. What conduct is prohibited;
b. Which individuals are designated to receive complaints under the policy;
c. Procedures for making and resolving complaints;
d. Various forms of remedial action;
e. Confidential nature of such complaints; and that the company will protect confidentiality to the extent possible under the circumstances (without promising absolute confidentiality);
f. Prohibition of retaliation for making a good faith complaint, or for providing information relating to such complaints during an investigation; and
6. Penalties for misconduct.
3. Training of Supervisors
a. Regardless of a designation of certain individuals to receive complaints, all supervisors and managers must receive special training about what is expected of them with respect to harassing and discriminatory conduct in the workplace.
b. Despite a clear and appropriate designation of individuals in a policy, there is a strong likelihood that employees, EEOC investigators, judges and juries will hold employers responsible for any notice of harassment or discrimination coming to the attention of any supervisor.
c. According to the EEOC, \"an employer's duty to exercise due care includes instructing all of its supervisors and mangers to address or report to appropriate officials complaints of harassment regardless of whether they are officially designated to take complaints, and regardless of whether a complaint was framed in a way that conforms to the organization's particular complaint procedures. For example, if an employee files an EEOC charge alleging unlawful harassment, the employer should launch an internal investigation even if the employee did not complaint to management through its internal complaint process\" (EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors [June 21, 1999]).
d. Supervisors must understand that they have an affirmative duty to act, whether unlawful conduct is observed or reported by a subordinate. They must know that even where no complaint is made, an employer can be held liable.
e. Training of supervisors should include the following:
(1) Explanation of types of conduct that violate the employer's anti-harassment and discrimination policy;
(2) Importance of the policy;
(3) Supervisory responsibilities to avoid participating in harassment and discrimination;}
(4) Supervisory responsibilities to prevent inappropriate conduct, and to address it when it takes place in their presence or comes to their attention;
(5) A direction that all harassment and discrimination complaints coming to their attention from any source whatsoever must immediately be brought the attention of those individuals designated in the policy to receive such complaints; and
(6) A direction that handling harassment and discrimination complaints at a departmental level is unacceptable, and may subject the supervisor to disciplinary action.
IV. THE EFFECTIVE INVESTIGATION
A. Triggering Events – When is a Formal Investigation Necessary?
1. Investigations must not be limited to situations in which an employee personally complains in accordance with the procedures in a policy.
2. Supervisors and managers must be considered the eyes and ears of the organization, regardless of level or authority.
3. Employers must assume that they will be held liable for any unlawful conduct which is either known to a supervisor or which should have been known through reasonable diligence. It goes without saying, but – Err on the side of caution! (to do otherwise simply is too risky)
4. A prompt investigation may be necessary when any of the following occur:
a. Employee complains to any supervisor about alleged harassment, discrimination and/or retaliation.
b. Any person – employee or non-employee – brings allegations to the attention of a supervisor that an employee has been subjected to harassment or discrimination.
c. Supervisor personally observes conduct which might reasonably be construed as harassment or discrimination (or other conduct which violates an employment policy).
d. Supervisor overhears employees discussing conduct which might reasonably be construed as harassment or discrimination.
e. Employer receives notice of an EEOC or Human Rights Division charge (even if no prior complaint was made).
5. Is a Formal Investigation Necessary?
a. With respect to any complaint, employers must determine immediately whether a formal investigation is needed.
b. Some problems may be resolved quickly and informally without an investigation, and it may be in the best interest of the employee and employer to attempt a quick resolution.
c. Employers should consider the following factors in determining whether to commence a formal investigation:
(1) Are the issues simple or complex?
(2) Does the complaint involve one employee or many?
(3) Does the complaint stem from a single incident or a patter of conduct?
(4) The severity of the conduct alleged.
(5) Are all the facts necessary for resolution known? (Was the alleged conduct directly observed? Did the accused admit to the conduct alleged?)
(6) Is special expertise necessary to reach a conclusion? (medical, psychological, financial, etc.)
B. Investigative Team – Who Should Investigate?
1. Choosing the investigator(s) is a critical part of conducting an effective investigation.
2. Remember that whoever is chosen may later be called as a witness.
3. It is preferable to have 2 competent investigators conducting any substantive investigation.
a. One should take the lead during interviews
b. The other should take careful and detailed notes, arrange interviews, act as a witness to verify what was said during the interviews, etc.
4. Qualities of a Good Investigator
a. Unbiased and objective.
b. Has knowledge and understanding of the company's policies, procedures and rules.
c. Competent, and experienced or trained.
d. Complainant is comfortable with him or her.
(1) Interviewers must be able to gain the trust of those they interview.
(2) Employers should inquire immediately whether the complainant is comfortable with the chosen individuals.
(3) While obvious to most, a female complaining of sexual harassment likely will be more comfortable talking with a female investigator.
e. Has the ability to ask the hard question, even if they may be perceived as uncomfortable, upsetting or even shocking.
f. Has the ability to make all witnesses feel comfortable during the investigative process.
5. Most Consider the Following Types of Investigators:
a. Trained human resources professionals
b. Trained line supervisors and managers
c. Member of the internal audit or ethics department
d. In-house counsel
While corporate counsel may be qualified to fill the role, they ordinarily should be consulted behind the scenes to avoid becoming a fact witness.
e. Regular out-side counsel
f. Special out-side counsel
g. Private investigator or other outside consultant
6. Generally, outside counsel, private investigators, consultants and other third party investigators should be hired as investigators where:
a. The employer lacks the resources or personnel to conduct an in-house investigation;
b. The accused is a high level employee or officer; and/or
c. The situation is complex, or there are other unique reasons to do so
C. Advance Planning and Preparation
1. Be Flexible.
a. Investigators must be prepared to conduct a comprehensive, objective, fair and professional investigation, and the investigation plan must be a flexible one.
b. The scope of the investigation may need to expand if evidence leads to allegations that people other than the accused are engaging in similar conduct, or that people other than the complainant have been subjected to such conduct.
c. Law enforcement may need to be contacted if the investigation turns up evidence of criminal conduct.
2. Identify, Assemble and Review Relevant Documents.
Create a confidential investigative file; and promptly identify, assemble and review all relevant documentation, including:
a. Complaint, if written, and any notes;
b. Relevant personnel policies, procedure, rules and instructions;
c. Memoranda, statements or notes previously created or obtained about the incident(s);
d. Managers' notes, files and memoranda;
e. Prior investigation files and reports;
f. Records of prior complaints against the alleged perpetrator;
g. Records of prior complaints by the complainant
h. Personnel files of the accused, complainant and witnesses;
i. Medical records, if applicable;
j. Relevant business records, including correspondence, time cards, calendars, diaries, tape recordings, photographs, logs, etc.
k. Physical evidence, if available.
3. Pre-Investigation Considerations
a. Parameters of the investigation – discuss them with the appropriate management representatives and counsel;
b. Reasons a formal investigation is required;
c. Whether all or part of the investigation could/should be protected under the attorney-client privilege;
d. Objectives of the investigation;}
e. Who should arrange for interviews, and in what manner;
f. The appropriate deadline for conducting the investigation;
g. Determine who should be interviewed, and in what order;
h. Determine what should be asked of the claimant, accused and witnesses;
i. Determine the format for recording information obtained during the interviews; and
j. Determine the format for the investigative report.
4. Secure a private location for conducting all interviews.
D. Interim Preventative Measures
1. Once it is determined that a formal investigation is appropriate, the employer must decide whether there is a need for preliminary action pending completion of the investigation.
2. Clearly, some \"interim\" action is necessary if there is a risk to the health and safety of an employee, or a risk to the integrity of the company's policies or the investigation.
3. If a risk is clear (or even likely) under the circumstance, consider taking preliminary action such as:
a. Suspension of the accused, with or without pay;
b. Transfer of the accused, if appropriate under the circumstances;
c. Contact with law enforcement personnel if criminal action is alleged;
d. Temporary transfer or leave of absence with pay for the complainant – but only if requested by the complainant, or if the complainant expressly agrees that a transfer or leave is appropriate or necessary. (If the complainant is transferred or put on leave involuntarily, the employer likely will have a retaliation claim in the midst.)
E. Who Should be Interviewed?
Avoid a fishing expedition, and limit the number of interviews to those reasonably determined to have relevant information. But, be prepared to expand your initial scope, if evidence demonstrates the need to do so. Typically, the following persons are interviewed in the course of an investigation:
Often, the complainant already has been interviewed in some way prior to commencement of a formal investigation. However, there may be a need for one or more follow-up interviews.
2. The alleged offender.
3. Anyone who directly observed a relevant incident.
4. Individuals identified by the complainant, accused or a key witness, who may have relevant information.
5. Authors of relevant documents.
6. Supervisor of the complaining employee and/or the alleged offender.
7. Individuals that the complainant or accused has asked you to interview.
F. The Interview
1. Prepare thoroughly in advance of each interview, being mindful of the unique issues involved with interviewing the complainant, accused and relevant witnesses.
2. The time and setting are important.
a. In order to protect privacy and confidentiality (to the extent possible), and to avoid any embarrassment to any party to the investigation, consider conducting the interviews away from the workplace and/or after hours.
b. If the setting is informal and comfortable, the interviews will yield more candid responses.
c. Do not sit behind a desk.
3. Prepare the questions in advance, understanding the questions will vary according to who is being interviewed.
4. Opening Statement
a. Most employees are nervous before an interview, unsure of what to expect. In order to alleviate any concerns, at the beginning of each interview, provide a brief explanation of the investigatory process and what they can expect to occur.
b. While the content of your opening statement will depend largely on the person you are interviewing, it generally should include the following:
(1) Appreciation for their time and cooperation.
(2) Brief explanation of the nature of the matter being investigated.
(3) Why the interviewee was asked to participate in the investigation.
(4) That the matter under investigation is serious, and that the company is committed or obligated to investigate the claim.
(5) That the information provided to the investigator will be kept as confidential as possible, and disclosed only on a need-to-know basis.
(6) Company forbids any form of retaliation against any participant in an investigation, and that any perceived retaliatory conduct should be reported immediately and will be dealt with promptly.
(7) No conclusions will be made until all facts have been gathered and analyzed.
(8) That each employee is expected to cooperate fully in the investigation
(9) That any attempt to influence the outcome of the investigation through discussions with others is a violation of company policy and can be the basis for disciplinary action.
5. No time limits. Never give the impression that an interview has a time limit. No interviewee should believe the employer is rushing through the investigation.
6. Keep the interview serious and professional at all times.
a. Remain calm and in control throughout the interview.
b. This is not the place for jokes, sarcasm or threats.
c. Avoid expressing any opinions or conclusions about the information obtained.
d. No editorial comments.
7. Stay focused.
a. While it is important to allow room for any relevant allegations which come to light, be careful not to allow for a discussion of general grievances.
b. Try not to focus on the reputation of the complainant or accused.
8. Take careful notes.
a. Start a new page for each interview, keeping notes from all other interviews out of sight.
b. At the top, place the name of the person interviewed, name(s) of any others present, and the date, time and place of the interview.
c. Sign and date the notes at the end of the interview, and indicate the time the interview ended.
d. Report what was asked, and the responses provided.
e. Never include your interpretations, conclusions, assumptions or beliefs about anything presented.
f. It may be appropriate to record your observations (facial expressions, blushing, shaking, perspiration, signs of anxiety, crying, etc.), but be careful to do so as objectively as possible.
g. At the conclusion of the interview, review with the witness the points contained in your notes, and confirm their accuracy; ask the witness if he or she has anything to add.
h. Review and finalize the notes immediately after the interview, to ensure their accuracy, being mindful that any grammatical errors or misspellings may discredit the investigator in the course of litigation.
i. Ask that the interviewee sign and date your notes of the interview. If he or she refuses to do so, let it go.
9. Consider requesting that the interviewee provide a written, signed and dated statement. If the interviewee is reluctant (or refuses) to do so, let it go.
10. Tape Recording an Interview
a. Generally, it is not advisable to tape record an interview. They make people nervous and less likely to be forthcoming. Recordings will make the investigator's techniques, questions, tone of voice, etc. easier to criticize.
b. Experienced investigators may prefer to record every interview.
(1) If it is recorded, the recorder should be placed in plain view on the table in front of the witness.
(2) The interviewee's consent should be obtained before turning it on.
(3) As soon as the recorder is turned on, state the date, time, place and participants, and have the witness affirm on tape his/her knowledge of and consent to the recording.
11. Questioning Techniques
a. Let the employee talk freely and \"vent\" (to an appropriate extent), to air any feelings or apprehensions.
b. Clarify any statements which seem vague, inconsistent or unclear.
c. Do not interrupt the interviewee, cut of any information offered, or supply an end to any sentence.
d. Use silence to your advantage. People often feel compelled to fill a gap caused by silence, and may volunteer more information as a result.
e. Ask open-ended questions
f. Never imply the \"right\" answer to any question posed, and do not offer conclusions or opinions.
g. Be aware of non-verbal signals. Observe body language, look for signs of nervousness (restlessness, perspiration, etc.).
h. Save any unfriendly or embarrassing questions until the end, to avoid early defensiveness.
i. Do ask the tough questions, even if uncomfortable for the investigator.
j. Ask follow-up questions, and avoid sticking to any preplanned script. Ask \"anything else?\"
12. Conclude with a reminder of the witness' duty to refrain from discussing the claims or the investigation with anyone, and thank the person for his or her cooperation.
G. What Do You Ask?
For every interview, keep in mind the purpose is to determine: who, what, when, where, why and how. More specifically, consider the following (as adapted to your situation):
a. What is the problem? What happened?
b. When? On how many occasions? Isolated, or part of a pattern?
c. Where did the incident(s) take place?
d. Who was involved?
e. Any witnesses? Who else was present?
f. What was your response or reaction?
g. Have you talked to anyone else about what happened? Who?
h. Have you spoken with any supervisors, or anyone in management or HR about the problem? Who? When? What was his or her reaction?
i. Are you aware of any documentation or things relevant to the situation?
j. Have you kept any notes, diaries or records relevant to the incident(s) or claim(s)?
k. Are you aware of any other employees with the same or similar concern?
l. Did you participate in any way? To what degree? (Be careful not to imply any fault on the part of the complainant.)
m. What is your relationship with the accused?
n. Have you had any other problems, on or off the job, with the accused?
o. What do you think the accused might say about the incident(s) or allegations?
p. How has the incident affected you? What, if anything, have you done about its impact on you?|
q. Do you think you can work with or around the accused?
(1) If so, is there anything that can be done to assist you in order to maintain a positive working relationship?
(2) If not, why do you believe you cannot work with the accused?
r. What action do you want the company to take? Do you have any suggestions or preferred resolutions?
s. Do you have any additional facts or information that would be helpful in the investigation?
t. [Thank the employee for raising the complaint, and reiterate the company's intention to get all of the facts and come to a prompt conclusion.]
a. What positions have you held? When?
b. Name the employees whom you have supervised or worked with?
c. Tell me about (the incident in question). What happened? When?
d. Who else was present? Witnesses?
e. How did the complainant respond or react? What was said? What did complainant do?
f. What participation, if any, did the complainant have in the incident?
g. Has the complainant ever engaged in the same or similar conduct in the past?
h. How do you view the complainant’s conduct prior, during, after incident?
i. Have you used profanity or (racial, ethnic, age-based, gender-based, etc.) remarks in conversations with other employees? What was said? To whom? When?
j. Has any supervisor, manager or employee ever requested that you refrain from using such language? Who? When? On how many occasions?
k. Have you ever socialized with the complainant outside of work? When? On how many occasions? What happened?
l. Do you have any documentation concerning the complainant or the incidents which are the subject of this complaint?
m. Do you have any witnesses you would like interviewed in the course of the investigation?
n. [If the accused denies the allegations] Do you have any idea why the complainant would make up or embellish the allegations?
o. Has anyone spoken to you about this investigation? Who? When? What was said?
p. Do you have any other information which might be helpful in the course of this investigation?
q. Are there any steps which you feel should be taken to ensure a proper investigation?
r. [Give the accused the opportunity to supply any alibis or mitigating circumstances.]
s. [Thank the employee for his/her time and cooperation, and reiterate that no determinations will be made until all of the facts are gathered and analyzed.]
a. Did you observe [the behavior or incident in question]? When? On how many occasions? Who else present?
b. Were you offended by or concerned about what you observed?
c. What was the complainant’s reaction or response to the incident(s)?
d. Did complainant say anything to you afterward?
e. Have you seen the accused behave in such a way in the past? When? Toward whom? Others present? Describe circumstances.
f. Did the complainant participate in the conduct? Explain.
g. Have you seen the complainant engage in the same or similar conduct?
h. Did you report what you observed to any superiors? Who? When? What did you report? What was the response?
i. Did you witness the complainant reporting or complaining about the conduct in the past?
j. Have you ever been subjected to the same or similar conduct? By Whom? When? On how many occasions? Where? Describe circumstances.
k. Do you have anything to add?
l. [Thank witness for his/her time and cooperation, etc.
4. Sexual Harassment Allegations
The following are some questions unique to investigation of sexual harassment complaints.
(1) Have you been subjected to any other conduct by the accused or another employee which you found to be offensive, sexually harassing, or constituting a hostile work environment? Explain each and every occasion.
(2) Did you report the prior incidents to any supervisor, manager or HR professional? Speak to anyone else about them?
(3) Did you ever indicate that you were offended by the incident(s) at issue here? When? What did you do? What was the accused response?
(4) Did you ever specifically tell the accused to stop? When? Who else present? On how many occasions? What was the response?
(5) Did you ever make any notes or a record of the incident(s)? Did you tape record it? When? Can we obtain a copy?
(6) What did you do after the incident(s)? (Determine whether complainant was able to continue with normal activities.)
(7) Did you ever seek any medical treatment or counseling? (Be careful here – don’t ask much more than that.)
(8) When did you first learn of our sexual harassment policy and complaint procedure?
(9) [If complainant did not use the complaint procedure in the policy, ask why.]
(10) [If the complainant waited a while to file a complaint, ask why.]
(1) Have you ever been romantically or sexually involved with the complainant? When? Explain.
(2) Have you ever commented on the physical attributes of the complainant? Any other employee? If yes, what was said? When? Who else present? Person’s reaction?
(3) Have you ever asked the complainant about his/her sexual relationships, or discussed sexual relationships with other employees?
(4) Have you ever touched any employee in an intimate fashion in the workplace? Ever touched an employee in such as way that the employee found it offensive? Explain.
(5) Have you ever invited any employee our on a date? When? Who? What was the response or reaction?
(6) Has the complainant ever initiated or participated in any sexual discussions, jokes or gestures?
(7) Have you ever threatened an employee’s job? Under what circumstances?
(8) Have you ever been reprimanded for sexual harassment of another employee?
(9) Have any of your superiors ever spoken to you about these issues?
(10) Have any gifts, cards, or “intimate” e-mails been exchanged with the complainant?
(11) Did the complainant ever ask you to stop
H. Analysis and Conclusions
1. Once the investigation is concluded, review the investigative plan and all information obtained. Ensure that the investigation is complete and the scope appropriate.
2. Meet with the appropriate employer representatives (HR personnel, management, counsel), to discuss the facts obtained during the investigation and any further information which may be required to make a determination.
3. Management – not the neutral investigator – should determine the best course of action to take as a result of the findings.
4. Assess Credibility. Consider the following factors in assessing the credibility of those interviewed:
a. What was the body language of the interviewee? (nervous, sweating, tone of voice, restless?)
b. How did the interviewee react to the allegations and the questions posed during the interview? (argumentative, defensive, hostile, evasive, forthcoming?)
c. Did the interviewee appear credible? (Were the answers consistent and logical? Did they make sense?)
d. Were there any admissions made during the interview process?
e. Is there any corroborating evidence to support the complainant’s allegations?
f. Is there any circumstantial evidence to the support the claims? (e.g., things that the accused said or did in other situations which make it more likely than not that the allegations are true?)
g. Consider relative motivations of everyone interviewed?
5. Reach a Conclusion.
a. As difficult as it may be, you must reach a conclusion. Never place a label on the conduct (“sexual harassment”), but instead, decide the facts (“we conclude that John did attempt to touch Jane”).
b. If the results of the investigation are inconclusive, document and report it that way. Do not say that the company concludes that no sexual harassment took place.
6. Take Prompt Remedial Action, if appropriate.
a. Even where an investigation is inconclusive, action may be taken, and employees may learn a lesson.
b. Remember, the employer must take action which is “reasonably calculated to end the harassment.
c. Consider the following options:
(1) Admonitions to carefully avoid offending conduct in the future.
(2) Training or educational programs – individually, as a group, company-wide.
(3) Verbal counselings or warnings.
(4) Corrective action plan, or probation.
(5) Deferral of a performance review date.
(8) Transfer of the accused (or complainant, if requested).
(9) Reduction in salary or salary freeze.
(11) Republication of the anti-harassment and discrimination policy.
d. If appropriate, follow-up other incidents or allegations which came to light during the interview process.
e. Consider the following in determining a course of action:
(1) Were any policies or instructions violated?
(2) What has been done in the past in response to similar violations or incidents?
(3) Does the law required that certain action be taken?
(4) What is the history of the person accused?
(5) Are there mitigating or aggravating circumstances?
f. Be careful not to over-react when imposing discipline – be sure “the punishment fits the crime.” Over-reacting may cause the accused to sue for defamation, and may cause a third party to believe that the complainant’s allegations were more serious (or more substantiated) than they actually were.
g. On the other hand, be mindful that adverse action may send a message to the offender and others who may learn of the penalty.
h. If possible, be consistent with action taken in prior similar situations.
7. Report Back to the Complainant and the Accused.
a.At the conclusion of the investigation, it is generally appropriate to report the conclusions to the complainant and accused.
b. Tread carefully here. The results must be communicated carefully and thoughtfully, without editorial comments, extraneous conclusions or beliefs about what was obtained.
c. Be mindful that whatever action is taken, no matter how appropriate under the circumstance, the complainant may feel that nothing has been done if the results are not communicated.
d. It is generally advisable not to report the findings to any other employee (including the other witnesses interviewed). You may tell them that the investigation and the resulting conclusions are confidential in accordance with company policy. However, if there is an opportunity to teach others through the process, consider it.
e. Consider a written report to the complainant – especially in more serious or egregious complaints.
f. Tell them that the complaint was taken seriously, the investigation has been completed, that each issue has been reviewed and considered carefully, and that appropriate action is being taken.
g. Tell them that the organization is committed to a workplace free of misconduct.
8. Report findings and conclusions to managers only on a need-to know basis
I. Investigative Report
1. Whether an investigative report should be issued depends largely on the nature and severity of the complaint, and who is doing the investigating.
2. If the decision-maker is conducting the investigation (e.g., manager, officer, HR professional), and the allegations are not particularly serious, a report may not be needed.
3. If the allegations are serious, or constitute a pervasive pattern of inappropriate conduct, consider drafting a formal investigative report.
4. Keep in mind that the report could be marked as “Exhibit A” in any lawsuit (for better or for worse), and could be subject to intense scrutiny by a judge and jury.
5. The following information typically should be included in a formal report:
a. Date of the complaint, or the information which prompted the investigation.
b. Date of the incident(s) leading to the investigation.
c. Identity, title and department of the complainant.
d. Identity, title and department of the accused.
e. Names, titles and departments of the investigators.
f. Summary of the complaint made, or information received leading to the investigation.
g. When the investigation began and was completed.
h. Identities of all persons interviewed, and the reason the person was interviewed as part of the investigation.
i. Dates of each interview, and a brief summary of the information obtained from each person.
j. Final decision made.
k. Copies of any employer policies or guidelines relevant to the situation.
l. Summary of key facts relied upon in reaching the final decision, with reference to the source of each key fact.
m. Brief discussion of any credibility assessments reached, including the objective observations from which such credibility assessments were made.
n. Brief discussion of how the employer’s policies apply to the situation.
o. The specific conclusion(s) reached on each key issue.
p. Identification of any issues that could not be resolved during the investigation, and why.
q. Description and dates of any action to be taken as a result of the investigation.
6. Remember to keep the report factual and objective to the maximum extent possible. The goal is to ensure that an agency, judge or jury determines that the employer took the complaint seriously, responded properly, and had a documented good faith basis for any actions taken.
J. Remember that the investigator (and the organization) must be able to explain what was done and why. Any action or omission may be called into question or criticized later. All decisions throughout the process must be made logically and thoughtfully
K. Use the investigation as an opportunity to improve the organization and its human resources practices. It can be a significant learning experience.