Responsiveness to an employee’s complaint about workplace concerns not only enables the employer to gather the best information, it also provides the employer with the opportunity to resolve internal problems before they become widespread. Given every complaint could turn into litigation, a well-planned and documented investigation can be an employer’s best defense. While each situation is unique, the following is a checklist of steps an employer should take as soon as a complaint is received:
- Obtain a Written Statement
Ask the employee bringing forth the complaint to provide a written statement detailing each incident (answering who, what, when where, how, why). The employee also should include in the written statement the names of any witnesses and what information the employee believes each witness can add. The employee should be asked to identify any tangible evidence. The employee also should be asked what resolution the employee is seeking. If the employee contends he/she was treated differently because of a protected category, the employer should consult the EEOC guidelines for additional questions that should be asked.
- Ensure Confidentiality, Non-Retaliation and Explain Next Steps
While an employer must protect confidentiality to the extent possible, the employer also must conduct a thorough investigation. Therefore, it may not be possible to keep all information gathered in an investigation completely confidential and an employee should be not guaranteed complete confidentiality. Rather, the employee should be advised that the information will be kept confidential to the extent possible. The employee should be advised as to the employer’s non-retaliation policy and that if the employee believes he/she is being retaliated against, that information should be brought forth immediately. A main point of contact should be identified so the employee knows with whom he/she should speak if the employee has any follow up concerns or questions.
- Gather Tangible Evidence
If the employee has identified any tangible evidence, such as emails, texts, pictures, write-ups, voice mail messages, sign-in sheets, work assignment logs, etc., gather those items. Think about any other types of evidence available in the workplace that might be useful, such as security footage, badge swipes or time records. Personnel records for the employee bringing forth the complaint and the employee who is the subject of the complaint should be reviewed to gain a better understanding into the relationship between the parties and possible areas of contention.
Ideally, an investigation will be completed within 1-3 business days of the Company first receiving the complaint. Realistically, witnesses may be on vacation, out sick or working swing shifts that limit availability. Any time there is a lapse in the investigation, the reason for the lapse should be well documented in the investigation file.
- Interview Witnesses
A list of questions for each witness should be created, and each witness should be interviewed separately. The investigator should take notes while interviewing the witnesses and be on alert for any additional witnesses or evidence identified by the witnesses. Investigators should be mindful of making sure the date, time and duration of the interview is clearly documented. Witnesses should be identified by first and last name and position or other identifying information, such as an employee number. Depending on the allegations, the investigator should consider having each witness provide a written statement or at a minimum, review and sign off on the investigator’s notes indicating that all information the witness provided was accurately recorded in the notes. Confidentiality, non-retaliation and a main point of contact also should be reviewed with each witness.
- Interview the Accused
Once witnesses have been interviewed, the investigator should interview the accused. Specific questions should be asked of the accused about the allegations. The accused should be given the opportunity to identify any evidence or witnesses the accused would like to be considered. The accused also should be asked about possible motivation for the allegations. Confidentiality, non-retaliation and a main point of contact should be reviewed with the accused. If additional witnesses are identified, those individuals should be interviewed. If additional evidence is identified, that evidence should be collected.
- Make a Decision
After all witnesses are interviewed and evidence is collected, the investigator will need to make a decision as to whether any Company policies have been violated. In making this decision, the investigator will need to consider all the parties involved and may need to make credibility determinations. If a policy violation is identified, the appropriate person(s) at the Company will need to make a decision on what disciplinary action, if any, will be imposed.
- Investigation Closure
The investigator should meet separately with the employee who brought the complaint and the accused. The investigator should assure both parties that the Company took the allegations seriously and took appropriate action. The investigator should not share with the employee who brought the complaint what disciplinary action, if any, was taken. The investigator should explain that any additional concerns should be brought immediately to the attention of the Company. Each employee should be reminded of the Company’s anti-retaliation policy.
- Written Investigation Summary
Since any investigation could lead to potential legal action down the road, a Company should consider preparing a written final investigation report detailing the steps the Company took during the investigation and summarize the findings. This investigation summary will be the roadmap that walks an outside party, such as a governmental agency or jury, through the investigation process from beginning to end. The written statements, interview notes and evidence gathered during the investigation would be attached to the investigation summary as supporting documentation that collectively becomes the file the Company relies upon to defend itself should the response the Company took to the complaint be challenged at a later date.