NEWS & ANALYSIS

The first time you learn of an employee’s complaint probably isn’t the day your company is served with a lawsuit. In most cases, the alleged victim complains to the company first. While an initial internal complaint provides an opportunity to solve the problem and limit your legal exposure, all too often an employer drops the ball by not following a few simple steps.  

In general, three principles apply to every complaint of misconduct or inappropriate behavior you receive. First, take all complaints seriously. Even a stopped clock is right twice a day, and the fact that Assistant Manager Eddie has made six complaints in the past six months doesn’t mean this particular complaint is unfounded. Second, you should investigate all complaints in accordance with your consistently-applied plan and policies, and thoroughly document the process. As with most employment issues, consistency and documentation are always a good idea. Finally, if you determine some misconduct occurred, take prompt remedial action.  

Step One: Create an Investigation Plan

While devising an investigation plan may sound annoying and cumbersome, its importance can’t be overstated. It sets the framework for your investigation of and response to any complaint. A thoughtful plan not only keeps the investigation on track, but is a helpful step in creating a shield from liability in the event of future litigation.  

Generally speaking, each time a complaint is reported, the employer needs to ask some basic logistical questions:

  • What is the complaint about?
  • Who should be on the investigative team?
  • Who should be interviewed, and in what order?
  • Where should those interviews occur?
  • What is the scope of the investigation?
  • What is an appropriate deadline for completing the investigation?  

Investigators should be well trained, detail oriented and objective. Administrative leaders and human resources professionals are typically good investigators, though you may run into practical or logistical difficulties getting your “A” team out there if the complaint came from a store in a remote location. Many retail employers use their risk management/loss prevention team to lead and conduct internal investigations. This is fine, but they are not always up to speed on the latest developments in employment law, so be sure that their plan and findings are reviewed by a seasoned Human Resources professional or employment lawyer before you take any irreversible action. If the situation may create bad publicity for the company, or if the allegations are serious, you may also opt to hire an external consultant or attorney. The investigative team should not include anyone who is accused of improper conduct or who is a witness, and the team members should have enough authority to be able to take appropriate action against any wrongdoers without fearing retaliation. For example, if the accused individual is a store manager, the team should consist of employees at the district or regional management level, or higher.  

Once the investigative team is set, everyone should review the relevant company policies as well as any written statements, documents or physical evidence provided by the complaining party. Each investigator should be reminded to keep contemporaneous notes of the facts uncovered, but to record any personal opinions and conclusions separately. You should also consider whether you want to ask each interviewee to sign a statement.  

Step Two: Interview the Complaining Party

Once you have a plan, it’s time to interview the complainant. It’s always a good idea to start off by thanking him for raising the issue. Assure him that he will not be punished or retaliated against, and ask him to report any retaliation or issues to you immediately. Further, take the time to explain the ground rules. Don’t promise the investigation will remain completely confidential, though you should make every effort to disclose the allegations only to those employees with a genuine need to know. Explain to the complainant that he is expected to provide a truthful and thorough accounting of events, evidence and witnesses. Ensure at the outset that the complainant believes that the investigation can be conducted in a fair and objective way, and that he has no objection to the individual investigator.

Keep in mind that your main job at this stage is to get all the information that this person can give you. When asking questions about the alleged events, get as many details as possible regarding who, what, when, where and how. Again, asking the complainant to write and sign a statement is usually a good idea. Ask the complainant to identify any witnesses or documents that may provide additional information, including personal emails or notes. Further, ask the complainant what corrective action he believes would be appropriate. Assure him that if the investigation reveals inappropriate conduct occurred, the company will take appropriate corrective action, up to and including termination. Remind him that if anything else comes to mind later, he should let you know.

Finally, as soon after the interview as possible, review your detailed notes and prepare a summary of the interview while it’s fresh in your mind.

Step Three: Interview the Accused

While you’ll go over the same ground rules with the accused, you’ll also want to assure her that no conclusions have been reached and that this interview allows her the opportunity to present her side of the story. Be sure to discuss each alleged improper statement or action and allow the accused to respond to each one. She may surprise you and dispute some statements but not others – she may even admit to the entire incident. If the allegation is harassment (whether based on sex, race, or other characteristic), you should also assess whether the accused had reason to believe that her conduct was not “unwelcome.” As with the complainant, observe the accused’s posture, tone of voice, eye contact and other body language as it may provide valuable insight into her credibility.

If the accused admits to the behavior, you can terminate the investigation and decide the appropriate corrective action to take. If the accused refuses to participate in the investigation, inform her that the company will base its decision on the information gathered during the investigation and the inference it will draw from her refusal to cooperate.  

Step Four: Interview the Witnesses

Often, although not always, there will be witnesses to the alleged behavior. Interviewing these third-party witnesses may provide the most impartial information, though that’s not necessarily the case with friends or enemies of the complainant or the accused. While you need to provide witnesses some information concerning the allegations, you probably don’t need to go into great detail. Instead, go through each incident the witness allegedly observed and then ask whether there is any other information they have that might be helpful. If the witness denies knowledge, ask whether he knows why he would have been named as a witness. Again, keep good notes, and prepare a summary soon after the interview.

Once you think you’re done interviewing witnesses, double-check your interview summaries to make sure that you’ve followed every substantial lead. This is a good time to get the help of a third party, such as an employment lawyer, to review the investigation “cold” and help you identify additional leads. Although you may not need to talk to all 25 employees who allegedly watched Eddie get slapped, you do need to ensure that you haven’t missed a key witness, failed to review a surveillance tape, or failed to retrieve and review a critical email.

Step Five: Determine What Happened

Once the interviews are complete and all the documents or physical evidence have been reviewed, you must determine whether the alleged misconduct actually occurred. This stage is often the most challenging for a company, and consulting with legal counsel may be particularly helpful. 

Keep in mind you don’t have to conclude that nothing happened just because there are no witnesses and the accused denies the allegations. On the other hand, you aren’t required to accept unsubstantiated allegations. You should consider the evidence and the witness statements, and may make credibility determinations, and come to your best conclusion regarding what happened and who, if anyone, was at fault.

Step Six: Determine What, If Any, Action to Take

Once you have determined what happened, you need to decide what, if any, action to take. If you determine misconduct occurred, you must decide what corrective action to take against the accused. In the case of harassment or discrimination, this action must be prompt and reasonably calculated to fix the problem. What corrective action is appropriate depends on a number of factors, including the severity of the conduct, the number of incidents involved, and whether the misconduct represents a pattern. You should also review how you or your predecessors handled similar situations in the past. You’ll want to handle the current situation the same way unless there are unique circumstances that didn’t apply in the past cases.

You may also decide that no misconduct occurred, or that you can’t determine whether misconduct occurred.

Whatever the outcome, you should document the investigation in a report that lays out the allegations, the interviewees, the timetable, a summary of findings as to each incident or allegation, and your conclusions.

Step Seven: Communicate to the Complainant and the Accused; Follow-Up

Although you need not provide details, you should then communicate the results to the complainant and the accused in a discreet and confidential manner, even if you determine that no misconduct occurred or if the investigation was inconclusive. Restate the company’s position that it will not tolerate unlawful harassment (if applicable) or misconduct, and that the complainant will not be punished for having raised the issue. You should thank the complainant for coming forward and invite him to report any future misconduct or any additional evidence that supports the original allegation.

Where the allegations are of discrimination, harassment, retaliation, or any other issue that has legal implications for your company, it is strongly recommended that you have periodic follow-up with the complainant after the investigation has concluded. This will help you respond promptly if there are any further issues, and will help you protect yourself and the company if there are none. You may want to put a monthly reminder on your Outlook calendar to check in with the complainant, and have those monthly follow-ups for about a year after the investigation concludes. Be sure to document the outcome of each follow-up discussion.

Although complaints come in all shapes and sizes and no two investigations will be identical, following these guidelines will help you to effectively respond to complaints of harassment, discrimination and other types of workplace misconduct.

NOTEWORTHY NUMBERS

Litigation Statistics, U.S. District Courts

Click here to view graphs.

SOURCE: Administrative Office of the Courts. Statistics are for Fiscal Years, which run from October 1 in the prior year through September 30 of the ‘current’ year. For example, FY 2010 runs from October 1, 2009 through September 30, 2010.

RETAILER'S RECAP

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