This article, written by attorney Bryanna Devonshire, was originally published by seacoastonline.com and can be found here.
It’s Monday morning and you are starting your busy week as a Human Resources Director. An employee comes into your office, closes the door, and tells you that she feels she is being sexually harassed by her supervisor, who is also the head of her entire department.
What do you do next?
The answer is: conduct an internal investigation and promptly.
Internal investigations can be required by statute in some situations, but there are other times when, though not required by statute, conducting an internal investigation is in the company’s best interest. For example, a company should conduct an internal investigation when there’s a formal or informal report of a violation of company policy, violation of law, safety incident, data security breach, or any event that has the potential to cause the company to initiate or defend litigation.
No two investigations are the same, but the following best practices are applicable to most internal investigations.
- Protect the Complainant: Depending on the situation, one of the first things an employer may need to do is provide protection for the complainant or the alleged victim. Be mindful of the protective measures taken, however, as you will want to avoid taking any measures that could appear retaliatory. In the above example, a transfer to another department might seem like the obvious protective measure to take, but that could ultimately be perceived as retaliatory and could result in a retaliation claim against the company. You may want to present options to the complainant and work on a plan jointly.
- Confidentiality: The employer should aim to keep the complainant’s claims and the investigation as confidential as possible. Only involve other employees if their involvement is deemed necessary to conduct a prompt and thorough investigation. Everyone involved in the investigation should be instructed to keep the matter confidential. The employer should inform the complainant that the company will maintain the confidentiality of the investigation to the best of its ability, but that, in order to conduct a full, thorough, and lawful investigation, complete confidentiality might be impossible.
- Preserve Information: Employers must preserve any information that is relevant to the investigation. If the employer reasonably anticipates litigation, then the company should consider implementing a company-wide litigation hold. Ideally, the company will already have a written record retention plan that outlines its formal litigation hold policy. Either way, the company will need to determine what information is necessary to preserve and the best manner to preserve such information, which might include forensic imaging.
- Choose the Investigator: Choosing the right investigator is arguably the most important task. A good investigator will make the internal investigation process as seamless as possible and will help achieve a balanced result for all of those involved. A bad investigator, or a poor fit, could expose the company to liability if the investigation is not conducted properly. Important qualities to look for in an investigator include: experience with similar investigations; a talent for getting people to talk; the capability of dealing with sensitive topics; thoroughness and attention to detail; objectivity; an understanding of the legal landscape; and knowledge of business operations. A company will have to decide whether to retain someone from outside of the company to conduct the investigation, or whether there is someone internal who can conduct the investigation. Internally, the most likely option is HR, but there are risks of HR conducting the investigation, such as lack of objectivity and internal politics getting in the way. An employer should consider retaining outside counsel to conduct an internal investigation, especially if the investigation involves high-level management. If outside counsel conducts the investigation, you are more likely to get the desired objectivity, specialized knowledge, and knowledge of the legal landscape. Additionally, another added benefit of retaining outside counsel is that the company can take advantage of and invoke the attorney-client and work-product privileges.
- Conduct Interviews: After choosing the investigator, the investigation will be underway. The investigator will usually start by conducting interviews and will likely start with the complainant. Information the investigator receives from the complainant can provide the investigator with a road map for the entire investigation. The complainant’s interview will often help the investigator decide who to interview, what to ask, and what documents to review. Consideration should be given to the location of the interviews. The investigator should try to find a private location to help maintain confidentiality and one that is not intimidating and encourages disclosure.
- Review Documents: The investigator should look for and examine documents and other evidence relating to the complaint. The interviews will help the investigator determine what documents might exist and what is important. The investigator should look for documents that support or refute the complainant’s claims; resolve inconsistencies in witnesses’ accounts; and resolve credibility issues. Remember, the company should control access to email records, not the employee, and should be able to access employee emails behind the scenes.
- Investigation Report: The result of the investigation should be a written report that explains all the steps taken, when the steps were taken, the documents and information considered, and any information not considered. The report should highlight the factual findings and minimize legal conclusions. The report should highlight consistencies in the evidence, identify inconsistencies in the evidence, and resolve inconsistencies when possible. The investigator might provide recommendations for corrective actions and discipline in the report as well. But be careful here, this report may be discoverable in a subsequent litigation if not drafted by counsel. If the harassment ended in a tangible employment action or if the employee relented to her aggressor in a quid pro quo, this report could provide a road map for holding the company accountable for the supervisor’s wrongful conduct.
- Discipline: The company should carefully consider the results of the investigation before deciding what steps to take next. The company may decide that discipline is necessary. Any considerations influencing the decision to discipline or not discipline should be documented, especially if the company does not impose the discipline recommended by the investigator.
- Closure with Complainant: The employer and investigator should thank the complainant for bringing the matter to the company’s attention. The investigator should summarize the steps that were taken and the findings made. The employer should explain what corrective measures were implemented, if any. Supervisors of the complainant should be cautioned to avoid any actions that might be perceived as retaliation against the complainant going forward. Even if several years pass between the investigation and a subsequent event, the complainant may draw a connection between the two events and assert that the subsequent action is really pretext for unlawful retaliation.