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Failure to properly investigate an employee’s claim of misconduct has always been a potential danger area for employers. In recent years, courts have imposed an affirmative duty for employers to promptly investigate charges of discrimination or sexual harassment and set standards for these investigations. After making the correct decision to institute a prompt and thorough investigation, the selection of the investigator becomes the next most important consideration.
In 1999, in response to two Supreme Court rulings fixing employer responsibility for sexual harassment, the EEOC published a document giving employers specific guidance regarding unlawful harassment. This document set forth parameters for an investigation which, when followed, can protect employers from liability arising from an inadequate investigation. In other key decisions, the courts have mandated that employers conduct a reasonable investigation before terminating an employee for just cause. Employers’ burdens continued to grow when in October 2003, the California Legislature passed Assembly Bill 76 which makes employers expressly responsible for the sexually harassing acts by non-employees.
With the stakes high and seemingly growing, investigation has become a crucial factor in protecting a company’s assets in the face of workplace allegations. How can an employer face this challenge? Should an employer keep the investigation inside the company, pass the problem on to retained counsel, or hire an outside investigator to work with counsel?
The first instinct of an unsatisfied complainant (or his/her attorney) is to challenge the quality of the investigation and the qualifications of the investigator.
The in-house investigation, especially one supporting management’s position, is more susceptible to a challenge of bias than one conducted by a qualified neutral professional. It is also possible that an in-house investigator’s concern for his or her own future might cloud the findings or stifle a candid interview with a senior officer.
An investigation conducted by counsel alone, if challenged, could place counsel in the role of percipient witness to the detriment of his legal services. But by utilizing an independent professional investigator with oversight by counsel, the employer has the option of using the results of the investigation as part of its defense or shielding the results under the attorney-client privilege.
The most obvious benefit of a professional investigation, however, is to get the answer to the question: “Did it happen?” Most discrimination and especially sexual harassment offenses are “one-on-one”…there are few witnesses and most evidence will be circumstantial.
A claim usually involves a truthful party and another who has violated his or her position of trust or made a false allegation. The victim could be the person harassed or the wrongfully accused employee. One party should welcome a highly qualified investigator and the other should have grave fear of having the truth exposed.
One common ground shared by both the defense and plaintiff labor attorney is the critical
role that truth plays in their legal strategy. The plaintiff attorney abhors spending money and time on a case where the client stretched the truth. The defense attorney needs the truth before making the “fight-or-settle” decision. A professional investigator serves both sides.
If, after a prompt and thorough investigation, the finding supports the allegation, the employer has the opportunity to strike an equitable settlement without litigation and to reduce the risk of future misconduct. If, on the other hand, the allegation is without merit, the employer can support the accused. Should litigation result, the employer can be comfortable that any claim of an incomplete or biased investigation will fail and that counsel will be able to mount a defense supported by the facts developed in the investigation.
A challenge to an investigation often starts with an attack upon the parameters initially set for the scope of the investigation. The experienced investigator is aware of areas that can be challenged and produces a work product that, from inception, is above professional criticism.
An experienced investigator protects the confidentiality of the investigation, exhibits no bias, and has the ability to gain the confidence of witnesses, some of whom are reluctant to get involved. The art of interviewing is a skill honed and perfected over many years. The skilled investigator has experience which qualifies him to evaluate the credibility of a witness. Also, any admonishment regarding retaliation may be taken more seriously when given by a professional whose credentials are respected, or possibly feared (by the non-truthful party). The EEOC standards for employer investigation charge the employer with the duty of weighing each party’s credibility. With conflicting versions of relevant events being the rule rather than the exception, the investigator’s credibility assessment is a key element supporting a management decision.
It is an old FBI axiom that investigators should investigate and attorneys should apply the law to the results. Agents receive extensive legal training to ensure that they have a thorough understanding of the relevant laws. A key criteria for selecting a workplace misconduct investigator should be the investigator’s experience and training in the area of employment investigations. Just as complex medical problems are referred to medical specialists, so too should complex cases be handled by investigative specialists.
