Almost 80% of the questions Googled pertaining to harassment and discrimination investigations begin with one of the five “W”s. When I saw this, I decided that a quick review might be in order. To cover all of the bases, we will also include the “How”. So let’s get right to the point.
- What – A workplace investigation is an internal investigation into matters such as harassment, discrimination, theft, policy violation, safety incidents, etc. There are several laws that require employers to investigate specific situations, such as OSHA requiring a proper investigation into the reasons behind a workplace safety incident. However, the most common matters that require workplace investigations are related to discrimination including sexual and other harassment.
- Why – Title VII of the Civil Rights Act of 1964 applies to all employers in the U.S. with 15 or more employees, and many state laws apply to employers with as few as 1 employee. These laws provide discrimination protections for individuals, of which sexual and other harassment is covered. Under these laws, employers are required to conduct a prompt and impartial workplace investigation when they become aware that harassment or discrimination may be taking place within their organization. Download your free list of state discrimination and harassment laws provided by InvestiPro.
- When – Although not defined by law, the courts have repeatedly referred to a prompt investigation as one starting within three days of the time the employer received information that harassment or discrimination may be taking place. Again, it is important to note that state laws may require quicker action. For example, the California Department of Fair Employment and Housing recently amended their investigation requirements to state that the investigation must be timely. The committee who developed the new changes, which became effective April 1, 2016, suggested timely be defined as within two days. These laws do not require employers to conclude the investigation within those tight timeframes, but rather to begin the process and act diligently to resolve the matter as quickly and efficiently as possible.
- Who – Often an HR Representative will be tasked with conducting a workplace investigation, but that should not be automatic. Investigations must be conducted by an individual who is familiar with the applicable employment laws and unbiased regarding the outcome of the investigation. For this reason, it is important to determine the best person to conduct an investigation depending on the circumstances being investigated and the parties involved. For example, it may be inappropriate to assign an early career HR Coordinator to conduct an investigation into claims relating to a manager and the CEO. As a best practice, the individual conducting the investigation should be at least equal in rank to those being investigated, or an outside resource may be used. It is important to note that if you choose an attorney to conduct the investigation, that attorney would likely not be allowed to represent the company if the claim goes to trial as they become a material witness to the case. If an internal employee is conducting the investigation, which is often the best and most cost effective option, the individual should find a resource for ensuring they are comfortable with the investigation process and have the tools to effectively document the entire investigation.
- Where – Investigations include a thorough interview with each of the involved parties and potential witnesses. In order to protect those being interviewed, it is a best practice to secure a private place to hold the interviews where the individuals will not be seen by everyone to be coming and going from the room, and the interviews cannot be heard from the outside. For small business or those with tight workspaces that do not allow much privacy, I advise employers to conduct interviews at an offsite location such as a conference room or a meeting room that can often be reserved in a library or community center.
- How – Although investigations can be diverse in scope depending on the issues and number of employees involved, the steps taken to conduct an investigation are generally the same.
- Report of incident
- Investigation plan
- Assessment of facts
- Determination and corrective action
- Final Report
If you would like more information, or if you have a question or topic you would like to have addressed, please post them in the comment section I will get back to you promptly. It’s important to remember you are not alone in this. When you need to investigate…… www.GoInvestiPro.com!