There are a number of legal traps waiting for companies that conduct an improper investigation or fail to investigate at all. Generally, these traps come in the form of lawsuits brought either by an employee who was a victim of inappropriate behavior in the workplace or by an employee who was disciplined or fired after being accused of misconduct. In either situation, a company that performed an incomplete, biased, or late investigation—or that never investigated at all—begins the lawsuit in a fairly deep hole. Not only has the company ignored its workers’ legal rights, but it has also shown a lack of concern for its workers’ well-being, something that many jurors (most of whom are or were employees themselves, not employers) find offensive.
In addition to these legal issues, companies that don’t investigate problems or that conduct a half-hearted investigation will face practical problems. These employers are sending precisely the wrong signals to employees, managers, and customers: that they don’t want to hear about workplace problems, they don’t really care what’s going on in their company, and they won’t enforce their own workplace rules.
Here are some common investigation errors:
Failing to Investigate
If company management is aware of serious misconduct or dangerous activity in the workplace and doesn’t do anything about it, the company could have significant legal exposure. Generally, any harm that comes to a company’s employees—and sometimes, to people who aren’t on the payroll, such as customers, clients, or bystanders—after the company has notice of a problem will be the company’s legal responsibility.
To avoid the legal problems that can result from failing to investigate, take workplace problems seriously. Never ignore complaints of wrongdoing. Even if a situation seems straightforward, always do some initial research before deciding that an investigation isn’t warranted. And make sure you know all the facts before taking disciplinary action against an employee.
Even if you eventually decide to investigate and do a good job, your company can get into legal trouble if you wait too long to get started. If an employee suffers harm—from harassment or workplace violence, for example—after you learned about the problem but before you took action, your company will usually be legally responsible to the employee. The longer you postpone the investigation, the more serious that legal liability could be.
Of course, there’s a simple solution: Don’t delay your investigation. Once you learn of a serious problem or complaint, get moving right away. If you absolutely have to wait a bit before getting started (because the victim is on vacation, for example), document the reasons for the delay.
Some companies get into trouble by acting inconsistently—that is, by handling similar situations differently. In the employment arena, inconsistent treatment can lead to claims of discrimination. An employee who feels that he or she was treated differently because of a protected characteristic—an inherent quality, such as race or gender, which cannot legally form the basis for an employment decision—might bring a discrimination lawsuit.
Avoid discrimination claims by treating similar problems similarly. If you decide to investigate one claim but not another, make sure you have a valid, business-related reason for doing so. If you punish one employee more harshly than another, be prepared to justify the difference.
Your company may not take any negative action against an employee for coming forward with a complaint or participating in an investigation. An employee need not show that he or she was fired or demoted to bring a retaliation claim: Lesser forms of mistreatment might also qualify as retaliation, if they could discourage employees from bringing complaints.
To protect against retaliation claims, warn everyone involved in an investigation that retaliation won’t be tolerated. Ask the complaining employee—and perhaps his or her manager—to bring any instances of retaliation to your attention immediately. And if you must separate workers, either move the worker accused of misconduct or make very sure that the worker who complained is in favor of the change you propose.
Failing to Be Thorough
Performing an incomplete or sloppy investigation—by failing to interview key witnesses, neglecting to review important documents, or ignoring issues that come up during the investigation, for example—can have many of the same negative consequences as failing to investigate at all.
If an employee can show that you did an incompetent job, perhaps by hiring an expert witness to testify that you didn’t investigate properly, your company will be in an even worse position than if you never investigated in the first place.
Loose lips do more than sink ships: They can also torpedo a workplace investigation. From a practical standpoint, talking too much during the investigation—telling a witness what another witness said, revealing your personal opinion to one of the employees involved, or publicizing the complaint in the workplace, for example—can lead others to doubt your objectivity. They might believe you have already made up your mind and therefore aren’t going to investigate fairly. Employees involved in the investigation might change their statements, either subconsciously or intentionally, based on what you say. And you can bet that if you’re talking about the investigation, the entire workplace is talking, too, which will lead to a lot of gossip and lost productivity.
You’ve probably developed some personal opinions about most of the people you work with. It’s human nature to like some people more than others. But you have to put these opinions aside and look objectively at the evidence when you conduct a workplace investigation. If you let your personal feelings and opinions hold sway, you might be accused of discrimination—and the results of your investigation could be called into question.
The best antidote for this problem is to remember your role. When you investigate, you are acting on behalf of the company. If you feel unable to put your personal feelings aside, get some help. Ask someone else within the workplace (or hire an outside investigator) to conduct the investigation or get some advice from a lawyer.
Strong-Arm Interview Tactics
Some investigators are so intent on getting straight answers from the workers they interview that they restrain workers against their will. For example, an investigator might lock the door to the interview room, physically prevent the employee from leaving, or tell the employee something like “nobody’s leaving this room until I find out what really happened.” Using physical means to restrain an employee, or taking actions that lead the employee to believe that he or she is not free to go, can lead to a legal claim of false imprisonment.
You can avoid false imprisonment lawsuits by avoiding coercive tactics. If an employee indicates that he or she wants to leave the room or stop an interview, let him or her go. Your company is free to take disciplinary action against an employee who refuses to answer legitimate questions or participate in a workplace investigation. However, you can’t use physical means or threats to prevent the employee from leaving.
Invading Employee Privacy
Don’t become so zealous in your search for the truth that you invade employees’ privacy rights. This can be a tough call; after all, conducting an investigation involves a certain amount of poking around, usually into things that someone doesn’t want you to know about. However, if you cross the line from legitimate workplace concerns into private employee property or behavior, you could be inviting a lawsuit for invasion of privacy.
The best way to avoid violating employee’s privacy rights is to ask—or search for—only what you need to know. Exercise restraint: Don’t search or monitor employees without a good reason. The further you stray from the complaint or alleged misconduct, the more likely you are to invade someone’s privacy.
Using Polygraphs Improperly
You might believe that the easiest way to get to the bottom of a workplace problem is to require everyone involved to take a lie detector test. In many situations, however, polygraph tests will only lead to trouble. A federal law, the Employee Polygraph Protection Act strictly limits the circumstances in which an employer can require workers to take a lie detector or polygraph test, and it’s not easy to meet the law’s requirements.
Learn everything you need to know about conducting legal and effective investigations in The Essential Guide to Workplace Investigations, by Lisa Guerin (Nolo).