How to Conduct an HR Investigation

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Most employers know they need a solid anti-discrimination and harassment policy in their employee handbook. Almost all organizations have a clear and easy process for reporting violations. But where some employers fail is in the actual investigation that must follow every employee complaint – even frivolous ones. It’s a mistake you don’t want to make. The Supreme Court provides employers with a defense if they have an effective process that prevents or stops discrimination/harassment. A worker who claims co-workers created a hostile environment but didn’t use your process can’t win a lawsuit.

Employers must choose between two options when designing effective HR investigations. Either find a way to conduct a solid, independent investigation in-house or outsource the process. A thorough investigation will go far when an employee or a state or federal agency sues you.

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Internal HR Investigations

If you choose to retain control of HR investigations in house, be sure that you can prove it was independent. That means assigning someone to head the investigation who knows nothing about the employees involved. The investigator must have no knowledge of past complaints, EEOC or DOL filings or lawsuits – even against prior employers. Then the investigation must be independent and neutral. Here are some tips:

Interviews: Immediately begin the investigation by speaking as soon as possible with everyone who might have relevant information. Do NOT rely solely on a supervisor’s explanation or denials. If you do, you may fall into the “Cat’s Paw” trap. In that fable, the cat got another to do his will by duping him. Courts routinely conclude taking the supervisor’s word without an independent look imputes his bias. The investigator is then duped into doing the supervisor’s dirty work.

Take immediate action: Separate the alleged harasser from the complaining employee. Make sure the move doesn’t harm the complaining employee. That could be illegal retaliation and another ground for a lawsuit. If the allegation is a sexually or racially hostile environment, remove any graffiti, photos or other offensive material immediately. In other words, prevent further harm.

Move quickly: Do not put off investigating. Time is of the essence. Treat each complaint as the emergency it is. But be thorough. For example, when interviewing witnesses, record the interviews with written or recorded oral permission. Take notes and retain them. Then prepare a report with conclusions and recommendations.

Get legal advice: Consider whether to involve legal counsel at the outset, especially if there are red flags of potential liabilities. Ideally, your organization’s counsel should have signed off on your investigation process already. If he or she has not, do so now.

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External Investigations

You can also outsource investigations. This helps establish that the investigation was independent. Your attorney may be able to conduct the investigation or refer you to an organization that specializes in workplace investigations. Most investigators will make final recommendations and suggest changes going forward if the complaint revealed problems.

Train everyone on policy

Jaime, who is Hispanic, worked for a school district. When first on-boarded, he got a handbook copy of the employer’s anti-discrimination and harassment policy. He promptly forgot about it. The employer did not, however, offer regular or even sporadic training on the policy. When Jaime complained about his supervisor’s offensive labels for Hispanics, other managers ignored him. He finally sued and the employer argued he should have filed an internal complaint under the policy. The court disagreed, concluding that it was the employer’s job to advertise the policy and explain how it works. Moral of the story: train everyone on your policy.

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