- Talent Management
In a previous article, I laid out 9 steps that should be taken when conducting a workplace investigation. Every step of the process contains inherent risks and the opportunity to do something wrong that can have major legal repercussions. It’s important to get things right when conducting an investigation. If a lawsuit does occur, the quality of your investigation will come into play, which means you need to do whatever you can to avoid making the common mistakes that can come back to haunt you later.
Here are several mistakes you should avoid:
Failure to Investigate: Unless a problem is truly minor and can be easily resolved to everyone’s satisfaction, it’s almost always better to conduct an investigation. If it turns out that there has been serious wrongdoing and you failed to investigate it thoroughly, you not only send the very wrong signal to everyone in the company that you don’t take such problems seriously, you’re also failing to protect your company and its workers, which is something nearly any jury will find offensive. If you become aware of a potential problem, then you’re legally responsible for doing something about it.
Taking Too Long: When a complaint or allegation comes to your attention, it is absolutely vital that you act swiftly and decisively. Even delaying an investigation can result in legal trouble for you. One of the most common questions that comes up in a lawsuit is why it took so long for any action or investigation to take place. Sometimes you really can’t get started right away. If that’s the case, just make sure you thoroughly document the reasons for any delay.
Inconsistent Actions: One of the basics of a workplace investigation is to know how similar problems were handled in the past. If your company has handled similar situations in widely different ways, you run the risk of being accused of discriminatory treatment, especially if the employee thinks that the reason they’re being treated differently is based on “protected class” status (race, gender, ethnicity, religion, disability, etc.). Similar situations needed to be treated in a similar fashion. If you deviate substantially from similar past situations, you need to have well-documented and thorough reasons for doing so, especially when it comes to disciplinary actions against employees.
Retaliatory Actions: When a complaint comes in, you must take it seriously regardless of your personal opinions or beliefs about the complainant. If you don’t you run the risk of the employee claiming retaliation. Many people mistakenly believe that retaliatory behaviors only include such obvious actions as being demoted or fired. In reality, anything that might be construed as discouraging employees from making complaints can be considered retaliatory actions. Just make sure that everyone involved in an investigation understands that retaliation is not tolerated.
Lack of Thoroughness: When an investigation is warranted, the effort must not be perceived as half-hearted. You must show that you’ve dealt with every aspect, gathered every bit of evidence possible, and have ignored nothing. Otherwise a lawsuit could claim you didn’t do everything in your power to conduct a thorough and fair investigation. Botching an investigation is even worse than not conducting one at all.
Lack of Confidentiality and Objectivity: Always keep your personal opinions to yourself and refrain from talking about the investigation with anyone. The more you talk about it, the greater the chance that people will question your impartiality.
Inappropriate Investigation Techniques: Don’t let your zeal to get to the bottom of things make you do anything that might be perceived as “strong-arming.” Both your physical demeanor and behaviors, along with what you say, must not be coercive in any way. If you’re not careful about this, you can be accused of harassment or false imprisonment. You must also avoid unnecessarily invading an employee’s privacy. If you feel the need to conduct a search or monitor an employee’s behavior, make sure you thoroughly document good reasons for doing so. And stay focused on what you need to find out about the matter at hand. Stay away from lie detector tests as they can only be used in very certain, highly-restricted circumstances.
Workplace investigations are one of the most distasteful aspects of being an HR or talent management professional. But they also represent the surest way to handle complaints fairly and thoroughly, as long as you avoid the most common mistakes when conducting them.