T Conducting Effective WORKPLACE INVESTIGATIONS BY DEBRA A. MASTRIAN, AMUNDSEN DAVIS LLC The importance of conducting effective workplace investigations in response to internal complaints cannot be understated, especially in today’s highly regulated environment. There are various types of situations that call for a formal investigation, including allegations of harassment, discrimination, retaliation, an unsafe workplace or employee misconduct. Not every workplace complaint calls for a formal internal investigation. Personality conflicts, poor communication and minor grievances, for example, may be resolved by listening to the concerns and meeting with the parties involved. However, when circumstances require a formal investigation, what steps should be taken to ensure its effectiveness? Why is an Effective Investigation Important? A prompt, fair and thorough investigation may help avoid administrative charges or lawsuits. It may also provide a defense to legal liability or regulatory fines. For example, if a sexual harassment allegation arises between two co-workers (non-supervisors) and the company has a policy, conducts a prompt and fair investigation, and takes appropriate corrective action (if the claim is substantiated), the company can establish a defense against liability. An effective investigation is also critical for resolving and, ideally, preventing workplace conflicts. It demonstrates to employees that the company takes the matter seriously and gives teeth to the company’s policies. Poor or “sham” investigations, on the other hand, can lead to distrust and expose the company to liability. In the recent Mohamed v. Society for Human Resource Management,1 an organization has been accused of conducting a sham investigation of allegations of race discrimination and retaliation. A former employee (Mohamed) alleges she complained internally that her supervisor showed favoritism to white employees over non-white employees, then got a demand from her supervisor to finish projects by the end of the month. While HR began an investigation, HR was simultaneously helping ghostwrite emails from the supervisor to Mohamed about the “non-negotiable” project deadlines. Mohamed complained this was retaliation. The timing is disputed, but either that same day or a few days thereafter, before completing the prior investigation or investigating the retaliation complaint, HR assisted the supervisor with Mohamed’s termination documents and then notified her that her complaints were unfounded. In denying the organization’s motion for summary judgment on both liability and punitive damages, the district court found, in part, that a jury could reasonably conclude the investigation was a sham and, therefore, serves as evidence of pretext for discrimination. When and How To Conduct An Investigation? Generally speaking, any matter that may result in potential liability for the company should be investigated. This is true even if the victim does not complain. If a company does not investigate, they are inviting liability based on their failure to respond. The following are some general tips for an effective workplace investigation: ▶ Use the right investigator(s). Typically, HR is the best choice because of their people skills and approachability. Some matters may call for a team approach. The investigator(s) should be perceived as unbiased and conduct the investigation in a fair and impartial manner. ▶ Determine the nature of the allegations. Determine which laws and policies are implicated and whether immediate or interim measures are necessary. For example, if the allegation is one HUMAN RESOURCES 32 HOOSIERBANKER
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