Thorough investigations can protect employers from claims that their decisions were discriminatory, retaliatory, or in bad faith. Conversely, a defective investigation can increase an employers’ exposure to those same claims. Consider, for example, Viana v. FedEx Corporate Services, an unpublished Ninth Circuit opinion issued on March 22, 2018. The appellate panel in that case overturned summary judgment for the employer because (among other things) there were issues regarding the adequacy of the investigation. The court noted, for example, that there was evidence that the supervisor conducting the investigation referred to the plaintiff using derogatory and sexist terms and failed to get the plaintiff’s side of the story before deciding to terminate.
To help ensure that your investigation strengthens your ability to support whatever decision you ultimately make, follow these ground rules:
- Pick a qualified investigator — You want someone who’s far enough from the situation to be impartial and who has experience investigating these types of issues. It also needs to be someone who understands how to question witnesses. (Now the cynics out there may be thinking that I’m just saying that so people hire us to do their investigations. To that I respond: 1) If people follow these steps, there will be less harassment litigation, and therefore less work for me and my ilk; and 2) It’s not as if the goal of this blog is to repel clients.)
- Follow your company policies — The policies are there for a reason. Use them. Any irregularities allow plaintiffs and their attorneys to raise doubts as to whether this was a good faith investigation or a cover-up.
- Keep things moving — Get to witnesses while their memories are fresh. Delays make it too easy for a plaintiff to argue that discovering the truth wasn’t a priority for the employer.
- Document every step — The most critical documentation will be written statements from key witnesses. Documentation minimizes the opportunity people have to change their stories. And save every scrap of documentation. If you dispose of anything expect to be questioned about what you were trying to hide.
- Evaluate the evidence objectively — The person complaining doesn’t have to prove his or her case beyond a reasonable doubt. Even if it’s the proverbial “he said/she said,” you need to decide who is more credible.
- Take appropriate remedial action — If you conclude there was wrongdoing, take actions reasonably calculated to prevent it from recurring.
- Keep the complaining party informed — Let them know the status of the investigation, the conclusions, and the steps being taken. Then when it’s all over, follow up with the complaining party periodically to make sure that there have been no further issues.
- Don’t add a retaliation claim to your problems — Do nothing to the complaining party that could be viewed as punitive. This includes transfers, reductions in hours, or anything else that penalizes or isolates them.
A prompt, thorough investigation can go a long way towards protecting an employer from litigation. A shoddy investigation can have the opposite effect.