How to Conduct a Workplace Investigation: Best Practices and Legal Defenses (2023)

In today's business landscape, workplace harassment has become a significant concern for employers. The fallout from harassment can have severe consequences, impacting an employer's reputation and bottom line. When an employee files a harassment complaint with specific allegations, it is crucial for employers to conduct a thorough investigation to address the issue promptly and ensure a fair resolution.

In this article, we will discuss the best practices for conducting a workplace investigation, including legal defenses that employers can utilize to protect themselves. By following these guidelines, employers can navigate the complexities of workplace investigations and mitigate potential legal risks.

Legal Defenses to Harassment

Employers facing harassment allegations can rely on legal defenses to protect themselves from liability. One such defense is the Faragher/Ellerth defense, established by two landmark cases in 1998: Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth .

Under the Faragher/Ellerth defense, employers may avoid liability for hostile workplace harassment if three conditions are met:

The complaining employee did not suffer an adverse employment action, such as demotion or termination.
The employer promptly remedied any harassing behavior.
The complaining employee failed to take advantage of established reporting procedures that would have allowed the employer to address the issue.

To benefit from this defense, employers should have a written reporting policy in place, clearly outlining the procedure for employees to report harassment. Employees should be encouraged to report incidents to their supervisors, the human resources department, or someone of higher rank if necessary. Employers can further protect themselves by obtaining signed acknowledgments from employees, confirming their receipt of the reporting procedure .

Another legal defense available to employers is conducting a proper investigation. In the case of Cotran v. Rollins Hudig Hall International, Inc., the court ruled that an employer's investigation into harassment allegations was properly conducted, leading to a fair treatment of the accused employee By conducting a thorough and impartial investigation, employers can demonstrate their commitment to addressing harassment claims and potentially avoid liability.

Investigation Do's and Don'ts

To ensure a fair and effective workplace investigation, employers should follow certain do's and don'ts. Here are some best practices to consider:

Investigation Do's:

Keep a record: Maintain a detailed record of the complaint, including the date received, complaint details, and investigative actions taken. This record should be retained in accordance with local laws and regulations .
Follow the procedure: Adhere to the investigation procedure outlined in the company's manual or policy. This helps demonstrate good faith and adherence to established protocols.
Maintain confidentiality: Conduct the investigation in a private room, ensuring privacy and confidentiality for all parties involved. The investigator should be skilled at taking accurate notes and may use a recording device with the consent of the participants .
Impartiality: The investigator should be impartial and unbiased. Whether an internal manager, a member of the HR department, or an external investigator, they should approach the investigation with objectivity and fairness .
Thorough interviews: Conduct comprehensive interviews with the complainant, the accused, and any witnesses. Ask open-ended questions to gather relevant information and evidence. Encourage interviewees to provide any supporting documents, such as emails or texts.
Gather relevant documents: Collect any documents or records that may be pertinent to the investigation, such as emails, texts, or calendars. These documents can help establish a timeline and verify witness statements.
Make a reasonable decision: After reviewing all the evidence, make a reasonable, good-faith decision on the appropriate action to take. Document the decision and include it in the investigation report .

Investigation Don'ts:

Delay or fail to complete an investigation: Once a complaint is made, initiate the investigation promptly. Failure to do so may lead to negative inferences by a court.
Make the complainant jump through hoops: Keep the reporting procedure simple and accessible. Avoid requiring written statements or excessive cooperation from the complainant. Once a specific complaint is made, begin the investigation.
Fail to conduct an honest investigation: Even if a complaint seems questionable, it is essential to conduct a thorough investigation. Gather all relevant evidence and review it objectively.
Leak information: Maintain confidentiality throughout the investigation. Do not disclose details of the investigation to anyone not directly involved. However, be aware that employees may not be obligated to keep the investigation confidential.
Retaliate: Retaliation against the complainant or any involved parties is strictly prohibited and may lead to separate legal violations.
Fail to reach a conclusion: After conducting the investigation, make a decision based on the available evidence. Even if the evidence is inconclusive, document the decision and take appropriate action .

By following these do's and don'ts, employers can ensure a fair and thorough investigation process that complies with legal requirements and protects their interests.

Conclusion

Workplace investigations are crucial for addressing harassment complaints and protecting employers from legal liability. By implementing best practices, such as having clear reporting procedures, conducting impartial investigations, and following legal defenses, employers can navigate the complexities of workplace harassment and create a safe and inclusive work environment.

Remember, each workplace investigation is unique, and it is essential to consult with legal professionals to ensure compliance with local laws and regulations. By prioritizing the well-being of employees and addressing harassment claims promptly and fairly, employers can foster a positive workplace culture and mitigate potential legal risks.

Note: This article is intended for informational purposes only and should not be considered legal advice. Employers should consult with legal professionals to ensure compliance with applicable laws and regulations.