By: Ann Fromholz
Originally published in Law360 on June 2, 2017
Much like other types of investigations, a workplace investigation can unearth all kinds of unexpected information.
The Chicago Tribune reported recently that an investigation into whether a water district superintendent used his government email account for gun deals blew up into a finding of racist and sexist behavior at the highest levels, which led to resignations by top city officials.
And according to a San Jose Mercury News report in March, a workplace investigation at Tesla into an employee’s complaints about racist behavior took a tricky turn when the company later discovered that many of the employees involved, including the one who complained, would socialize outside work and freely use the language that the employee complained about.
Recently, I was hired to conduct an investigation at a private firm that had received a complaint of sexual harassment from one of the few women in management. She alleged that the harassment had been going on for months and that it had gotten so bad that she could no longer work at the firm.
During the investigation into her complaints, witnesses told me what they knew about the complaining party’s claims. They also told me about sexual overtures by a male senior executive toward numerous junior women at the company. The witnesses told me that his conduct was well known, but none of them had complained to the company about it until I showed up to investigate a different complaint.
The rules aren’t always clear as to what the investigator is supposed to do with the information when the case takes an unanticipated turn. This article offers some guidance on this.
Define The Scope of the Investigation
First, define the scope of the investigation from the beginning. This is one of the first rules that any would-be investigator learns about conducting workplace investigations.
It is common for the complaining party or other witnesses to raise issues or allegations that clearly are outside the scope of the investigation
Once the investigator, who is functioning as an agent of the employer, knows of the new allegations, the company is on notice of the allegations and has an obligation to investigate. The investigator therefore should notify the appropriate person within the employer’s reporting structure of the new allegations as soon as possible. If the investigator is internal, she may notify the head of human resources, the head of the legal department, or another internal resource who is overseeing the investigation. If the investigator is external, she should notify the person at the employer who is responsible for the investigation (often, but not always, someone within the legal or human resources departments). The employer then should determine whether to expand the scope of the current investigation or initiate a new investigation. The employer also will determine whether a different investigator will investigate the new allegations.
The investigator should document any decision to change the scope of the investigation. Likewise, if the investigator notifies the employer of new allegations and is instructed not to investigate those new allegations, the employer should document this instruction.
Avoid Risk for Retaliation Claims
Sometimes, an expanded investigation can put the investigator in a difficult position and put the employer at risk for claims of retaliation. Let’s use as an example an investigation into an employee’s claim of sexual harassment against her supervisor. The responding party — the person accused of harassment — tells the investigator that the claims are baseless and that the employee made the claim to protect herself because she is a poor performer and knew that she was about to receive discipline for her unacceptable performance.
The employer should not request that the investigator expand the scope of the investigation to include the allegations of poor performance and the assertion that the complaining employee made the complaint of harassment to stave off discipline. The investigation should remain focused on the allegations of workplace misconduct, which in this scenario are the original claims of sexual harassment. The company’s human resources department should manage the complaining party’s job performance separate from the misconduct investigation.
The investigator may determine that the complaining party’s job performance, and the possibility that she made the harassment claim as a preemptive strike, affects the complaining party’s credibility.
Beyond that credibility determination, workplace investigations should not be used as a substitute for performance management. If the employer charges the investigator with investigating the complaining party’s performance, and that inquiry becomes intertwined with the original investigation, the employer runs the risk that the complaining party may well allege that the investigation itself was retaliatory.
Instead, the employer should have separate employment counsel — whether in-house or external — who can advise the human resources staff on how to manage the employee’s performance and how to ensure that such performance management is separate from her complaint of workplace harassment. With the advice of counsel, the employer should take steps to address the performance issue that was raised in the course of the investigation. Avoiding the issue of performance because the employee has complained of harassment — or other workplace misconduct — only serves to prolong a performance problem.
Perhaps the most difficult dilemma for an investigator arises when the investigator’s view of the investigation contradicts what the employer believes should happen. No matter how careful the investigator is to define the scope of the investigation at the outset, such conflicts nonetheless can arise.
In many investigations, the investigator determines that certain employees — who were not in the original investigation plan — likely have knowledge relevant to the investigation and therefore should be interviewed. The investigator should explain to the employer what new information has arisen, why the new witnesses appear to be relevant, and why their interviews are necessary. In most cases, the employer will willingly allow the investigator access to those employees and, if necessary, help schedule interviews.
However, employers sometimes choose to restrict the investigator’s access to certain employees or information. This may happen because the information is particularly sensitive or because the employees are very highly placed or very visible. In rare cases, employers have prohibited investigators access to employees (or former employees) without giving any reason or demurring because the additional interviews would increase costs too much.
Whatever the reason, the employer’s decision to restrict the investigator’s access to certain employees or information is a problem. It can create a serious ethical dilemma, especially when the information relates to the established scope of the investigation.
If the investigator cannot convince the employer to allow her access to the necessary witnesses or information, the investigator often will elect to document her request to the employer, the employer’s denial of the request, and the investigator’s perception of the ensuing impact. If the witnesses and information are crucial to the investigation, the investigator might determine that she cannot continue the investigation with the restrictions imposed by the employer. Of course, she will document this decision as well.
The way the investigator and the employer frame the scope of the investigation will dictate the resources available to the investigator, the expectations of the investigation, and the availability of corrective action to address any problems that the investigation unearths.
If the employer views the investigation as a tool to find and correct problems in the workplace — and not as a necessary evil required by Draconian employment laws and employment lawyers — the employer is more likely to support the investigator and the investigation with the resources necessary to accomplish those goals.