10 (No. 6)
How to Conduct Proper Workplace Misconduct Investigations
In this environment of increased discrimination
claims, conducting prompt and legally effective investigations into workplace misconduct claims is
now a requirement for employers that wish to best
protect their organizations. While you may not be
able to stop a lawsuit, you can do your best to show
that your organization took a complaint seriously,
followed established and consistent procedures to investigate it, and applied appropriate standards to
determine the employer’s actions.
During a session at the 2010 SHRM Employment
Law & Legislative Conference, Denise Kay, an attorney and president of Employment Practices Solutions, pointed out that poorly handled complaints
and terminations are common causes of many employment suits, including wrongful discharge and
Kay, who performs workplace investigations,
warned that getting investigations right not only
saves legal exposure, but money. She said 20 percent
of all discrimination verdicts are valued at over $1
million, including class action and retaliation suits.
The latter has seen “dramatic increases” in filings,
she said, and you can expect to see more of itâ€”and
such lawsuits have no damages caps.
Investigation is a requirement. “You must investigate a claim,” Kay said. Why? “It could be true,”
and could be especially damning if the problem is between a supervisor and a direct report. Kay said employers tht don’t investigating every claim could lose
possible defenses in court, see the company’s objectivity questioned, harm the trust employees have in
the organization, and have fair and equal treatment
of all questioned.
Kay urged employers to investigate even if the
complainant reneges on the complaint. “You are obligated as an employer to investigate a potential discriminatory act.” She said this is the determination
of the U.S. Supreme Court in what is now known as
the Faragher /Ellerth defense, based on the court’s
rulings in two major cases that dealt with employer
actions after receiving workplace misconduct complaints. If a complainant backs down, investigate and
be sure to document why the investigation was not
done earlier, she said.
The situation can become very difficult for HR
professionals if the alleged aggressor is a senior
manager and you are told not to investigate, Kay
said. “The employer has a duty to look into it: call it
fact finding, if it makes the executives more comfortable,” she said. “Consider the consequences of not
looking into it.” Some HR professionals may be
forced to leave the employer if their ethics do not
agree with those of the company, she observed. If it
is not possible for HR to investigate, Kay said it may
be helpful to use an outside investigator (for instance, if your own boss is the alleged aggressor).
How do you know if you need to investigate? Kay
suggested first going to your employee handbook to
see if your business policy mandates an investigation. Other considerations include the seriousness of
the complaint, who is implicated, whether the complainant is a member of a protected class, if there is
or has been more than a single complaint, and if you
see potential litigation under the circumstances.
Courts generally believe you should investigate
any complaint related to harassment, discrimination,
theft, substance abuse, violence, internet and e-mail
use, insubordination, ethics, or finances.
Kay explained that confidentially imparted information, informal information, or even a rumor can
be considered a complaint. “Don’t force someone to
put a complaint in writing before you look into it.” A
complaint is any of the foregoing that is made to
anyone in HR or anyone at a management or supervisory level or higher.
June 2010 COPYRIGHT Â© 2010 BY THE BUREAU OF NATIONAL AFFAIRS, INC. HRF ISSN 1059-6038
(No. 6) 11
Investigation considerations. Kay cited cases
where courts made it clear that they have little tolerance for employers that excuse bad behavior. Inhouse investigations can be conducted by HR, an inhouse lawyer, someone in management, or someone
in an audit, risk, or ethics department, she said. Outside investigators can include outside legal counsel
or a consultant. Where appropriate, you may need to
bring in experts in medical, accounting, or safety.
Kay said there are more legal challenges about
the investigator these days. The investigator must
have a thorough understanding of the law and the
organization’s policies, procedures, practices and
rules, as well as knowing about investigation practices and techniques. Discretion and maintaining
confidentiality to the greatest degree possible are
key, as well as the ability to be fair and objective, she
said. The ability to perform well on a vÂ«tness stand
if the claim should end up in court is also a desirable
Assistance from legal counsel or a trained investigator can be especially useful when sometimes
sticky situations arise, according to Kay. When
employees/witnesses to workplace misconduct have
“lawyered up” or you even hear that they have, ask
your attorney to verify that notification of representation has been received, Kay suggested.
“Your duty is to proceed with the investigation if
you are a non-lav^^yer doing the investigation,” Kay
explained. “However, if you are a lawyerâ€”even a
non-practicing oneâ€”consider whether you should
proceed” under these circumstances, she said. A
number of issues could come into play, including corporate rules, union rules, and so forth.
So, you may want to consult vdth counsel before
proceeding on your own, Kay stated. If it is determined that the witness’ attorney can attend your
discussion with the witness, that attorney is constrained in certain activities (no objections, no interruptions, no right to receive copies of documents,
etc.). The viatness’ lawyer can refuse to allow his/her
client to participate, but the employer retains the
duty to investigate, whether or not the company has
the cooperation of a complainant or victim.
HR Focus Calendar
Best Practices in Succession Management,
Chicago, June 10-11. Contact: Linkage,
781 -402-5555; http://www.linkageinc.com
Leadership Development Conference, San
Diego, June 10-11. Contact: The Conference Board, 212-339-0345; http://
Today’s HR: Designs for Strategic Partnerships, Washington, D.C, June 10-11. Contact: Linkage, 781-402-5555; http://
62nd SHRM Annual Conference and Exposition, San Diego, June 27-30. Contact: Society for Human Resource Management,
800-283-7476; [email protected]; http://
Design and Implement Succession Management Systems, Washington, D.C, July 20.
Contact: Linkage, 781-402-5555; http://
Organizaf/on Design Conference, New York
City, Sept. 20 to Oct. 1. Contact: The Conference Board, 212-339-0345; http://
63rd Annual PSCA Conference and Exhibition, Amelia Island, FL, Sept. 21-24. Contact: Profit Sharing/401 (k) Council of
America, 312-419-1863; http://
23rd Annual Benefits Forum & Expo, Boca
Raton, FL., Sept. 26-28. Contact: Employee
Benefit News, 800-966-3976; http://
SHRM Strategy Conference, San Antonio,
Oct. 6-8. Contact: Society for Human Resource Management, 800-283-7476;
[email protected]; http://www.shrm.org
HRFOCUS ISSN 1059-6038 BNA June 2010
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