There is no shortage of news stories about the fallout that can come from harassment. Even if it takes place outside the workplace, harassment can affect an employer’s reputation and bottom line. When an employee makes a harassment complaint an investigation is required. Courts have ruled that failure to investigate amounts to discrimination. The law grants a legal provision to reduce or eliminate legal or certain liability in certain situations as long as conditions are met. If an employer has policies and procedures in place, that if properly followed grant both the complainant and the subject of the complaint are treated fairly the safe harbor condition applies.
In addition to a properly worded reporting policy and a means of making sure that employees know what it is, an employer should also have established policies and procedures for what comes next: an investigation. A second safe harbor for employers is to conduct a proper investigation. Another way to think of is that it does not require an employer to prove harassment with the same thoroughness as it might in a courtroom. A workplace investigation does not have to abide by the same strict rules of a police investigation, for example. But that more relaxed standard still leaves plenty of room for mistakes.
Once a complaint is made, the clock starts ticking. Don’t delay or fail to complete an investigation.
- The reporting procedure should be simple.
- Request for documents and electronic communications.
- Interview witnesses. Check attendance, surveillance, calendars, computer records, and so on.
- It is important to maintain confidentiality. The complainant, witnesses, and the person accused of misconduct should be able to present their evidence without worry that you will tell others.
- Don’t fail to reach a conclusion. After making an investigation, the employer is obligated to do something, even if the evidence does not go beyond “he said, she said”. Make a determination of what happened based on what evidence you have, including the credibility of the parties, and act on that determination.
- Record the date you received the complaint, the details of the complaint, and the dates on which investigative actions were taken until the complaint was resolved.
In general, however, discretion is allowed, so long as the investigation is conducted in good faith. With that in mind, here is short summary of how an investigation may be conducted.
- Keep the investigation confidential
- Stay impartial; the investigator may begin a timeline of events, prepare a list of people to be interviewed, and set a desired completion date for the investigation.
- Conduct thorough interviews with all parties. As this is going on, the timeline maybe filled in and a summary of agreed-upon facts prepared. As this process continues, the need for second interviews may arise as different accounts are compared.
- Gather evidence; obtain documents and records that maybe relevant to the investigation including, but not limited to, e-mails, texts, and calendars.
- Make a reasonable, good-faith decision; while it may be possible to resolve the issue with some training and memoranda, a good-faith investigation may end with one party’s credibility in better shape than the others, with accompanying consequences.
As the focus nationwide on harassment continues, employers must be prepared to respond to and protect themselves from claims within the workplace. This preparation includes having a written reporting policy and well-established investigation procedures. By being prepared, employers can take advantage of safe harbor rules that limit their liability from harassment claims.