Please Don't Investigate? You May Want to Agree
When an employee makes a complaint, conventional wisdom says that you have to investigate even when requested not to, says attorney Jonathan Segal. While that's correct for most cases, recognize that there may also be some risks in investigating.
Segal offered his tips at a recent SHRM conference. Segal is a partner in the Philadelphia office of the WolfBlock law firm.There Are Risks in Investigating
The risks of not investigating are obvious, says Segal. You're on notice of a potential problem, which may be worse than reported, and you won't be investigating it.
However, there are also risks in investigating. First, there's a loss of trust when an employee thinks they have revealed something in confidence and then you say you can't keep it confidential.
Second, in some circumstances, investigating may increase the litigation risk. Say an employee makes a "relatively" minor complaint. Even if everything alleged is true, it is not unlawful discrimination or harassment. But you dutifully go to the manager and talk about the accusation. Now, down the road, if there is an adverse action against the complaining employee, there's a basis for a retaliation claim that wasn't there until you started investigating.
So, Segal says, there's a strong presumption toward investigating, but there might be situations in which you would choose not to.
Factors to consider in making this decision include but are not limited to:
- The severity and pervasiveness of the alleged offense
- Whether others were affected by the alleged action
- Whether there have been other complaints by the reporting employee or about the accused employee
- Positions of parties involved (For example, if a junior employee is complaining about behavior of his or her boss, or some other senior person, you'll have to investigate.)
- When and where the alleged offense took place
If you do choose not to investigate, document the basis for your decision. Write a memo to the employee (not just to file). Mention that you have obligations to investigate allegations of harassment (or discrimination) and that you need to confirm what you discussed—that you offered to investigate and that at the employee's request you are not investigating. If there are any future problems, the employee should come back to HR.
Now, if things go south in the future, your memo will show that you didn't just brush the allegation aside and that your decision not to investigate does not mean that you condone discrimination or harassment.
From Sarbanes-Oxley to petty theft, from bias and harassment complaints to threats of violence, internal investigations are business as usual for HR professionals. But it's important to remember that they're a double-edged sword: You have a legal duty to promptly investigate, but if you make mistakes along the way, you could wind up in even more hot water than when you started.
Segal offered his tips at a recent SHRM conference. Segal is a partner in the Philadelphia office of the WolfBlock law firm.
There Are Risks in Investigating
The risks of not investigating are obvious, says Segal. You're on notice of a potential problem, which may be worse than reported, and you won't be investigating it.
However, there are also risks in investigating. First, there's a loss of trust when an employee thinks they have revealed something in confidence and then you say you can't keep it confidential.
Second, in some circumstances, investigating may increase the litigation risk. Say an employee makes a "relatively" minor complaint. Even if everything alleged is true, it is not unlawful discrimination or harassment. But you dutifully go to the manager and talk about the accusation. Now, down the road, if there is an adverse action against the complaining employee, there's a basis for a retaliation claim that wasn't there until you started investigating.
So, Segal says, there's a strong presumption toward investigating, but there might be situations in which you would choose not to.
Factors to consider in making this decision include but are not limited to:
- The severity and pervasiveness of the alleged offense
- Whether others were affected by the alleged action
- Whether there have been other complaints by the reporting employee or about the accused employee
- Positions of parties involved (For example, if a junior employee is complaining about behavior of his or her boss, or some other senior person, you'll have to investigate.)
- When and where the alleged offense took place
If you do choose not to investigate, document the basis for your decision. Write a memo to the employee (not just to file). Mention that you have obligations to investigate allegations of harassment (or discrimination) and that you need to confirm what you discussed—that you offered to investigate and that at the employee's request you are not investigating. If there are any future problems, the employee should come back to HR.
Now, if things go south in the future, your memo will show that you didn't just brush the allegation aside and that your decision not to investigate does not mean that you condone discrimination or harassment.
From Sarbanes-Oxley to petty theft, from bias and harassment complaints to threats of violence, internal investigations are business as usual for HR professionals. But it's important to remember that they're a double-edged sword: You have a legal duty to promptly investigate, but if you make mistakes along the way, you could wind up in even more hot water than when you started.
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