Civil rights laws require employers to investigate employee complaints. The employer must investigate problems of which they are or should be aware.  This includes any type of discrimination, harassment, threat, or safety problem faced by an employee.   Employers must take immediate and effective corrective action. To find out whether an investigation is even necessary, the employer has to collect and examine essential facts. Employers who fail to look are at risk of losing claims or lawsuits.

Why Employers Should Distribute Clearly Defined Anti-Harassment Policies

All employers should create and enforce anti-discrimination policies. These documents should provide clearly defined complaint procedures. However, employers sometimes fail to promptly investigate complaints or take quick and appropriate remedial action.

Left unattended, discrimination and harassment problems may result in individual or multiple claims. An employer’s immediate and effective attention to complaints often limits or avoids lawsuits. Therefore, employers should put their procedures into action.  Employers should promptly and fully investigate complaints that appear facially valid, and take remedial action to punish wrongdoers and support those who have been unfairly victimized.

Employers Should Define & Adhere to Human Rights Policies for Employees

Employers should develop a “zero tolerance” environment for discrimination and harassment.  Employees should know they are encouraged to raise concerns immediately, rather than enduring or ignoring them. Successfully defining and adhering to human rights policies and procedures may result in decreased  issues, as employees learn their rights and uphold them effectively.

Privacy Rights & Complaint Investigations

Naturally, each problem demands its own type of investigation. However, certain common requirements run through them. The investigator:

• Has to be knowledgeable about state and federal employment laws
• Must respect an employee’s right to privacy
• Must conduct a thorough investigation, without letting it drag on
• Must be perceived as unbiased

In essence, investigations are a tool for employers to analyze the factual basis for employee complaints. They provide the employer with information that will support or refute the employer’s decisions.

In some situations, the employee will want to stay anonymous. The employer can inform the complainant that it will make every effort to keep the complaint confidential, but that it cannot promise to do so, since it has the legal responsibility to fully investigate workplace complaints and the eventual disclosure of events and names may be unavoidable.

In other cases, an employee may file a complaint of harassment and then ask the employer not to bother to investigate since they want a complaint “on the record” but don’t see it as a bigger issue than that.  In such cases, the employer still has the legal obligation to look at the problem, seek its resolution, and impose disciplinary measures if warranted.

Your employer should keep all written accounts of these types of investigations in a separate, private file, and not your personnel file.

What Happens When the Investigation Itself is Wrongful or Defective?

There is another side to the coin that must be mentioned.  Sometimes, a discrimination victim will point a finger at a co-worker or manager for something that was said or done, and it turns out to be wrong, either innocently or by design.  We have handled cases of employees defending against discrimination complaints where the complainant had bad motives for the complaint, whether for reasons of jealousy, vindictiveness, or to avoid being named in a complaint.  Worse, there are times when the employer’s investigation is so sloppy or biased that these individuals are disciplined or fired for something they did not do.   We have filed claims in such circumstances, to clear the employee’s name, seek reinstatement if they are fired, and request damages from the employer if negotiations are unsuccessful.

CONCLUSION

The subject of workplace investigations is complex and multi-faceted.  This post gives you the basic concepts, so you know what to ask and watch out for.  Whether you are entitled to an investigation that the employer refused, messed up, or turned against you, it is always best to have experienced employment counsel for workers by your side as you sort through these difficult issues.  We will analyze the facts, research the law, and give you an opinion about what you are entitled to, and what you are not.  In appropriate cases, we will contact the employer and the employer’s investigator, to find out what is going on and how to best position you in connection with that investigation.  Please write or call us today to ask for our assistance.  We will be happy to serve you, and you will be glad that we are there for you.