Employee complaints must be investigated, and some can’t be ignored, according to the law, such as sexual harassment complaints.
No statutes dictate exactly how an employer should conduct an investigation, but unless it’s properly documented and comes to a successful conclusion, you might as well expect a lawsuit.
The California Fair Employment and Housing Act (FEHA) (Cal. Gov’t Code §§12900–12996) requires employers to take “immediate and appropriate corrective action” in a timely manner when faced with an employee harassment complaint.
Additionally, the U.S. Equal Employment Opportunity Commission (EEOC) has determined: When an employer receives a complaint or learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly with proper documentation.
For good business reasons, knowledgeable employers investigate all complaints alleging illegal activities or violations of their company policies. Promptly investigating all complaints and communicating the results, when appropriate, improves employee morale and can potentially prevent further harassment or discrimination.
In some cases, rapid response with a preliminary workplace investigation into a potential complaint of unwanted conduct can eliminate the need for a more formal complaint and totally eliminate the need to mount an expensive defense regarding workplace discrimination, harassment, ADA accommodation or Workers’ Compensation.
Failure to properly and rapidly investigate a tip alleging a hostile workplace environment of any nature is the perfect predication to an expensive lawsuit, and makes your case almost impossible to defend. The longer the company waits to fully document such allegations, the greater the chance of misleading, exaggerated, or totally false allegations making their way into the lawsuit.
Experienced and diligent employers quickly conduct investigative interviews and permanently memorialize all of the facts, allegations, admissions or denials from alleged victims, witnesses and accused parties. It’s important to fully capture the statements in a manner which totally precludes the claimant subsequently changing the narrative without committing perjury.
A company sanctioned human resources employee, properly trained, can investigate internally the large majority of complaints. Our recommendation, however, is to consult additionally with your employment law attorneys for guidance; they should be aware of pending or ongoing investigations. This is an absolute necessity when the complaints involve serious potential liabilities, whistleblowers or when the allegations involve multiple accused employees, contractors or vendors.
When more serious allegations “up the ante” it may be very advisable –and economically prudent — to hire qualified outside investigators to present your legal counsel with an unbiased, third party report of all findings, interviewee statements and other evidence collected during their objective investigation. This plays especially well under third-party scrutiny when the employer’s stakes are very high and the allegations are serious.
During lean economic times, some employers make very costly errors of omission, failing to mount proper investigations in order to save money. No allegation is too small to properly investigate, and the very failure to quickly and thoroughly document allegations, whether internally or with the help of qualified professional outside resources, is negligent, sometimes even against the law, and will eventually cost the employer many times more than a properly conducted investigation.
When the employer who ultimately decided not to properly conduct an investigation is asked in court by a “plaintiff’s attorney” as to why an investigation was delayed, not conducted, or not properly documented, and the employer has to admit it was because of budgetary considerations, this sets up the perfect case for punitive damages.
When it comes to investigating an allegation of harassment, spare no expense and waste no time getting to the bottom of it. It’s never fun and seldom cheap, but it beats the alternative “by a country mile.”
For additional information please contact Patricia A. Kotze, Managing Partner at Diversified Risk Management, Inc. Ms. Kotze can be reached directly at 800.810.9508 or by email at firstname.lastname@example.org