Through strict adherence to ethical standards, businesses can prevent the majority of employee lawsuits. However, lawsuits are ultimately based on individual discretion and not always predictable or avoidable. That's why it's important to focus on mitigating the effects of potential lawsuits by conducting a proper workplace investigation whenever necessary.
An investigation should occur any time an employee reports significant wrongdoing, misconduct or ethical lapses. A business that conducts a poor workplace investigation risks damaging both its finances and its reputation.
In an employee lawsuit, a bungled internal investigation can sabotage the employer's case and create a direct path to a costly settlement. Also, failure to execute this common and necessary internal procedure will further embarrass an already distressed company, compounding the optical effects of the plaintiff's complaint with a dose of self-assured ineptitude. Just ask IBM, which paid out $4.1 million in a 2014 age discrimination suit after conducting an internal investigation too one-sided to admit as evidence.
It can be taxing, frustrating, and uncomfortable to conduct a workplace investigation. Thankfully, the process is considerably more manageable when you know the right guiding principles. Business News Daily spoke with attorney Dan Stern, an expert on labor and employment matters at Dykema Cox Smith, about common mistakes and complications in workplace investigations and how to avoid them. According to Stern, to respond effectively to rule violations, you should take heed of the following concerns:
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1. Recognize problems and train employees to do the same
The worst thing an employer can do is disregard a complaint or rule violation. Employees should be informed about what constitutes improper behavior and aware of their active role in correcting it. It's important for management to create an environment in which employees safe reporting concerns and to provide personnel with the necessary resources to conduct investigations.
As Stern says, "The reasons to conduct an investigation are almost endless. They include but are not limited to harassment or discrimination, and they don't require a formal complaint to initiate."
Stern noted that most workplace problems go unreported, and if employers are not monitoring company operations, issues may grow significantly by the time a formal complaint is made, if one is made at all.
"Employers should be vigilant about problems and act to correct situations before they become worse," he added.
Uncooperative employees often obstruct investigations, including by "reporting a concern and asking that nothing be done, refusing to be interviewed, and giving vague non-responses." A supportive workplace culture will promote cooperation.
2. Don't draw conclusions prematurely or make legal determinations
A perfunctory investigation can be worse than none at all. If you're hasty, there's a good chance it'll come back to haunt you, and it's likely you'll overlook crucial elements of the situation, or at least compromise your timeline.
Employers should prioritize completing investigations efficiently and with minimal workplace disruption, but also with the utmost care. Often, the full story is more than just a fleshed-out version of the initial complaint, and it's impossible to know without conducting a thorough investigation. Expect your first round of witness interviews and evidence reviews will unveil the need for more.
"You need to be ready to change course in the investigation or expand the scope based on information obtained," Stern said. "At times, the investigation may reveal other issues that will also need to be looked into."
While you must, of course, conduct your investigation with a sensitivity to potential legal ramifications, remember that you are not in a position to make a legal determination.
"You cannot claim, 'His behavior was sexual harassment that created a hostile work environment,'" Stern told Business News Daily. "Your role is instead to determine if the behavior took place as described in the employee complaint and whether it violated a company rule.
3. Always protect evidence
It may sound obvious, but sensitive information needs to remain secure. This is yet another non-negotiable measure. A lapse creates the risk of sabotage and confidentiality violations. Stern advises taking measures to protect evidence from destruction, especially in electronic form, which may be easily deleted or removed.
4. Assess each situation individually
What unites effective workplace investigations are their rigor, not adherence to a universal defined procedure or personnel structure. Be meticulous when considering the unique nature of each investigation, determining who should conduct it and how. It could be one person, a small group, or even a third party.
"Make sure you have someone with experience conducting investigations, and/or a third-party resource who can be quickly engaged, especially for situations that are legally complex, involve an executive, or are beyond the capabilities of your internal staff," said Stern.
5. Communicate with the party who made the complaint
If you don't inform the responding party about the initiation, progress or results of the investigation, you're mishandling the complaint.
If you need assistance dealing with an employee complaint or are concerned about a potential lawsuit, Business News Daily recommends consulting with a legal professional.