Handling Investigations in High-Risk Workplace Situations 

Employers are bracing for yet another year of continued change and flux in the ways that laws which prohibit discrimination and harassment are interpreted. It’s more important than ever for employers to ensure they know and understand when to formally investigate complaints and allegations of discrimination and harassment, and that they are doing so in a prompt and thorough way.  

A well-handled investigation can serve as an invaluable tool to maintain a compliant workplace culture, proactively prevent claims and lawsuits, and even as the best evidence available to defend and resolve claims once they are brought. Employers who fail to handle investigations in high-risk workplace situations may find themselves entangled in protracted and expensive claims and lawsuits.  

This article touches on three complex issues that should be on the radar of every attorney investigator and every attorney who provides counsel to business leaders on avoiding claims and lawsuits.   

1. Retaliation Concerns by Witnesses 

Retaliation concerns by the person bringing the complaint (the “complainant”) should be carefully thought through in every investigation. Retaliation, for many years, has remained one of the most common claims brought against employers across the country. However, for purposes of this article, what adds a layer of complexity in any investigation is not so much a fear of retaliation by the complainant, but rather what an investigator should do when third-party witnesses/coworkers are afraid to cooperate out of a fear of retaliation. 

A well-crafted policy that prohibits retaliation is one important resource for investigators to cite to, as is an admonishment at the beginning of every interview that retaliation is prohibited and will not be permitted. In addition, it can be an effective approach to creating a protocol for assuring witnesses that the report will not be widely circulated. Executive summaries in the report, which may omit the names of employees who made key statements, serve as another possible tool. In some scenarios, it makes sense for only the limited executive summary to be circulated to decision-makers instead of the full report. 

Finally, training for supervisors and other business leaders on what retaliation is, why it is prohibited, and how an investigation can lead to complaints of retaliation is another key factor to consider. 

2. Represented Parties 

What should an investigator do when there is a possibility that a witness has retained counsel?  

That’s a good question and touches on one of the more difficult issues that workplace investigators need to carefully consider. On one hand, many workplace policies require employees to participate in workplace investigations, so there is not necessarily an entitlement to counsel. And a workplace interview is hardly a deposition under oath during active litigation for purposes of creating a record. Thus, it is not a situation where a witness needs counsel to help state objections for the record (or to otherwise defend an employee who is being questioned). That being said, any time an employee has counsel on an issue about which they are going to be questioned in the course of an investigation, it requires careful consideration. 

One easy solution is for the investigator to ask every witness at the beginning of the interview if they are represented; the investigator should document, in writing, the response to this question. If the answer is “yes,” then further analysis is required. In some scenarios, the attorney representing the employee will likely need to be given the option to attend the interview (with instruction about the extent to which participation will be allowed). In any situation where a witness is interviewed, indicates they have counsel, and wants their attorney to attend, careful thought is needed as it is wrought with risk if the request is denied.  

We are starting to hear reports about a new trend where employees fail to disclose to an investigator that they have counsel and then later bring an allegation of wrongdoing against the employer when their attorney is not invited to the interview. Be on the lookout for issues related to employees with counsel and think through the facts in each case that dictate how to proceed. 

3. Failure to Communicate with Employees Impacted By the Investigation 

Finally, one of the biggest pitfalls at the beginning of an investigation occurs when an employer fails to give some level of communication to impacted employees concerning: 1) that an investigation is occurring; 2) that they need to cooperate with the investigator; 3) whom to contact if they have questions or concerns; and 4) what to do if their supervisor or subordinate is on leave pending investigation.  

Too often, employers try to keep discussion about the investigation to a minimum and fail to notify those who are impacted with the basics they need to know to keep the workplace functioning. While confidentiality is always an important consideration, ignoring that others need a basic measure of reassurance that everything is going to be OK creates chaos, feeds gossip, and results in workplace disruption. Don’t underestimate the importance of well-thought-out communication to inform employees about investigation details that will not compromise it but will keep the workplace functioning.