Workplace investigations are one of the toughest responsibilities in human resources. There’s an expectation that the matter will be handled in the strictest confidence. And when we do that, sometimes we’re criticized for not keeping people informed. That’s what appears to be happening in this situation.
I and some of my colleagues have been enduring a difficult coworker for several years.
After she triggered a severe allergic reaction in one of my colleagues, that required time off from work and medical expenses, I went to HR. My visit was to corroborate the colleague’s story.
It’s been two weeks. No apology was forthcoming and the coworker was flippant and nonplussed about her actions and the resulting issues. There’s been no change in her behavior. In fact, she seems emboldened.
HR did say they would be talking to several other people. How long does this sort of thing take?
Because workplace investigations can have a legal aspect to them, I decided to reach out to one of my labor attorney friends to help with the response. Jonathan A. Segal is a partner at Duane Morris, LLP. Their employment practice group helps employers achieve their business goals while maximizing legal compliance and minimizing their legal risks.
And I know you guys already know this but, just as a reminder…Jonathan is very graciously sharing this expertise with us. Please don’t misconstrue his comments as legal advice, as pertaining to a specific factual situation, or as establishing an attorney-client relationship.
Jonathan, I’ve seen this type of situation before. An employee goes to HR to complain about something and then it looks like nothing is happening. Let’s talk a little about workplace investigations. In your experience, in what kinds of situations does HR typically conduct an investigation?
[Jonathan] While HR almost always gets involved with allegations which raise or may raise a legal issue, HR also should look at personality disputes too; otherwise, the message employees hear is, if you want HR’s attention, raise your concerns as a legal nature. Managers need to be trained to report all complaints to HR, even if an employee asks them not to do so. If a manager knows, so does the organization and with that liability may attach.
When an investigation is being conducted, what’s the first step? Should they talk to the person being accused of inappropriate behavior?
[Jonathan] While the first step is almost always to talk with the complainant, the next step is to talk with either the accused or the witnesses, the order of which depends on the circumstances. From a retaliation stand point, it is better to interview witnesses next. But from minimizing the number of employees who know of the allegation, it is sometimes best to interview accused next. If he or she admits to the alleged wrong, there is no need to go further. We all have a default in terms or order. Key is not to default but to think as to order.
If I ask the company to investigate an issue or concern, are they obligated to come back and tell me the outcome of the investigation?
[Jonathan] While there is no legal duty per se to inform employees of the results of the investigation, the failure of an employer to do so results in anxiety that may end up with lawyers in the mix. I recommend employers keep an employee in the loop generally but not provide too much detail.
If the company says they’re going to investigate a matter and I don’t think anything is happening, is it okay for me to ask for a status on the investigation?
[Jonathan] Employees always have a right to ask about the status of an investigation but should recognize that there may be reasons why employers cannot provide employees with as much information as they may want. Employers need to be careful not to promise deadlines they may not be able to meet. You don’t know what you don’t know until you start the investigation. Move quickly but also carefully. No one size fits all in terms of how much time is needed for a thorough investigation.
If I go to HR to corroborate a story (as part of an investigation), do I have a right to know what’s going on?
[Jonathan] Employees have a general right to know about the status of the investigation but not necessarily whom has been interviewed or the basis for the employer’s credibility determinations. These issues often come out in litigation so sometimes employers share the information to let the employee know that he or she too has risk in the event of litigation. Risk for employer to share; risk in not sharing, too. For employers, it is all about managing as opposed to avoiding risk.
What should I do if I think I’m being targeted because I spoke to HR as part of an investigation?
[Jonathan] The law is clear that an employee cannot be retaliated against for making a complaint in good faith, serving as a witness, providing information as part of an investigation or being associated with the complainant. If an employee believes that he or she has been subject to unlawful retaliation (broadly defined), he or she can use the employer’s internal complaint procedure. He or she also has right to file an external complaint. It is important to keep in mind that not everything a complainant may not like is necessarily retaliation. Managing poor performance is usually not retaliation where the employer can show it started the process before the complaint and others have been performance managed for same or similar reasons.
Thanks again to Jonathan for sharing his expertise. If you’d like to read more of Jonathan’s thoughts, please be sure to check out his blog and follow him on Twitter. And if you want more info on investigations, here’s a PowerPoint you can download from a recent webinar Jonathan did on Conducting HR Workplace Investigations.30