A common issue that employers, regardless of size or industry, face is responding to employee complaints. If, for example, an employee reports that they are being sexually harassed at work or that another employee is violating a company policy, the way employers respond to and investigate employee complaints is critical to protect the employer from or assist in its defense of an employment-related lawsuit. This article will discuss four common mistakes employers make when conducting internal workplace investigations and what can be done to avoid them.  

1. Delayed Investigation

Employers often improperly delay internal workplace investigations. As soon as an employer receives an employee complaint, they should immediately begin to evaluate and investigate that complaint. Regardless of whether an employee makes a complaint directly or in passing or whether it’s in person, in writing, or telephonically, it should trigger swift action by the employer. From a practical standpoint, investigations ideally should begin within a few days of receiving the complaint to ensure that the employer has time to gather necessary information and evidence before evaluating next steps. Failure to investigate a complaint in a timely manner could open an employer up to liability.

2. Lack of Policies and Procedures for Workplace Investigations

If an employer does not have established policies and procedures that outline how an internal workplace investigation should be conducted, it can cause inconsistent or improper responses to employee complaints that may result in liability for the employer. If an employer has established policies and procedures, when a complaint is received, the employer can avoid wasting time with logistical matters and can focus on investigating the employee’s complaint. While flexibility may be needed in certain circumstances, a policy that clearly outlines the process for investigating workplace complaints provides the employer’s human resources professionals, managers, and supervisors with the proper tools to promptly and properly investigate a complaint. It also ensures that generally all complaints are handled in a consistent manner.

3. Improperly Trained Managers and Supervisors

However, even if employers have adopted policies and procedures, it is important that managers and supervisors understand their obligations under the policies. Interestingly, many employment-related lawsuits are initiated by the improper action(s) or inaction(s) of supervisors or managers. This is because in the eyes of the law, management represents or “stands in the shoes” of the employer. It is common for employees to go to their manager or direct supervisor with employment-related questions or concerns. Therefore, if a supervisor does not know how to respond to employee complaints, responds in an improper manner, or even fails to respond, it can open the employer up to legal liability.

Because supervisors are employer’s first line of defense in preventing employment-related lawsuits, it is important that they understand their responsibility and role in workplace investigations. Accordingly, supervisors should familiarize themselves with the employer’s policies regarding workplace complaints and investigations and should receive training to enable them to properly respond to employee complaints. As a general matter, when they receive a compliant, supervisors should remain neutral and listen to the employee, document what was discussed during the conversation, and ask clarifying questions if necessary. Supervisors should never promise confidentiality and should assure the employee that the employer will promptly look into the issue. Supervisors should then immediately notify Human Resources of the complaint, regardless of whether they personally believe the complaint is meritorious. Properly trained managers and supervisors are critical to ensuring that employee complaints are properly investigated.

4. Failure to Document the Employer’s Investigation Process

An employer’s failure to properly document its internal workplace investigation process can cause issues for the employer if it needs to defend itself against an employment-related lawsuit. During investigations, employers should keep a formal, written record of the steps taken by the employer-from receipt of the complaint through resolution of the same. Employers should keep records of the complainant’s statement(s), witness interviews, research, and meetings, along with a clear and comprehensive timeline that includes pertinent dates and times. Additionally, the investigation should be summarized in a report that describes the steps taken by the employer, the evidence gathered, and the ultimate conclusion of investigation. All documentation relative to the investigation should also be kept in one place that is easily accessible. Because all employee complaints have the potential to result in litigation, employers should understand that if a lawsuit is filed, all notes, documentation, and investigation materials can end up being evidence. However, thorough documentation of an investigation can help the employer defend itself in the event of a lawsuit.