KPA’s recent HRCI approved “Investigations Without Hesitation” webinar went down in the history books as being our most popular webinar ever! It was also co-hosted by FordHarrison, KPA’s partnering law firm.
Naturally, employers attending the webinar had lots of questions. Below are the most common questions that our experts were asked and their best practice answers.
Q: What is HR’s responsibility when an employee makes a complaint about another employee harassing him/her, but then the complainant says he/she is just venting and doesn’t want to file an ‘official’ complaint?
A: Any time a complaint or concern is brought to the attention of HR or management, you have a duty to fully investigate the matter. Even if employees indicate they are “just venting.” If there is inappropriate behavior happening, you want to be sure and address it as soon as possible to prevent future issues or claims.
Q: If we don’t ask the accused the direct question of, “Did you harass Nancy?”, then what should be our question?
A: You should start by asking more general questions, such as, “Tell me about your working relationship with Nancy?” or “Tell me about your day-to-day interactions with Nancy.” You can then move to a more pointed question about the situation: “Tell me about an incident that happened on XYZ date between you and Nancy.”
Try to avoid putting the accused on the defensive by directly asking, “Did you sexually harass Nancy?”
Q: Does the employer have the obligation to report sexual harassment to the police?
A: No, the employer does not have an obligation to report sexual harassment to the police. However, if it results in sexual assault, you should report it to the police and encourage the victim to file a police report. As the employer, you want to be sure you are protecting your entire workplace.
Q: Is it valid to ask the accused if they are willing to submit to a polygraph even if the employer is not planning to actually do so?
A: No, if the employer does not intend to administer a polygraph test, I would not recommend asking the question. If the employee says yes, and the employer does not follow through, it shows a lack of credibility on the employer’s part.
Q: Based on the NLRB, are we allowed to request the victim to keep things confidential?
A: There was a court ruling in 2017 on investigations and confidentiality in which the National Labor Relations Board (NLRB) announced a new rule prohibiting employers from using blanket policies barring employee discussions concerning ongoing investigations.
The NLRB stated that an employer may only prohibit discussions regarding ongoing investigations if it demonstrates on a case-by-case basis that it has a legitimate and substantial business justification that outweighs an employees’ Section 7 rights.
During the course of any given investigation, the employer must determine whether witnesses need protection, the evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there was a need to prevent a cover-up.
For additional information on this topic you can reference:
Q: Should our investigation questions and answers be written/recorded verbatim or can we summarize the responses?
A: Your questions should be fully written and documented. The answers can be summarized. However, if there is a phrase or quote that is an important piece of the investigation, you should fully document that with quotes, notating that it is a direct quote.
Q: Is it OK to ask employees to complete an initial written complaint form if they come into my office to talk about a situation that happened at work?
A: Yes, it would be considered a best practice to have the employee submit a written complaint to the employer. The employee should sign and date the written statement.
You can coach them to provide as many details as possible on the situation and name any potential witnesses.
Q: What are your recommendations regarding witnesses writing statements as part of the interview process?
A: We highly encourage collecting written statements from the accuser, accused, and any witnesses. These statements will help back up your interview notes.
Q: Are there any concerns with having interviewees sign off on the notes of the discussion after the interview to verify that the notes are correct?
A: There is no issue with asking interviewees to sign off on their written statements. In fact, it’s considered a best practice to have interviewees sign and date the written statement.
Q: What is your documentation retention recommendation?
A: You should hold investigation documentation for as long as the employee is an active employee and at least 3 years after their termination date.
Q: Do you have any thoughts on recording interviews?
A: We do not recommend recording interviews.
Q: How long should an investigation take? When a complainant is VERY UPSET and wants it to be taken care of NOW, how do I handle that?
A: An investigation should start immediately after you become aware of a situation. Depending on how many witnesses are involved and how many people need to be interviewed, an investigation should take 24-72 hours.
Q: At what point after receiving a written or emailed complaint from a harassed employee, do you let the accused party know that there is a harassment claim against them? Do you wait until the investigations take place?
A: You are not obligated to disclose the specifics of the claim nor the person who brought the claim forward. We recommend you do not disclose this information to protect against retaliation and potential backlash.
During your interviews, we recommend that you focus on asking questions around the situation(s) being reported.
Q: If witnesses discuss an interview/investigation with teammates, can we discipline them for doing so?
A: You want to ensure you have given the proper disclosure during your investigation interview. Emphasize that any information shared during the investigation process should remain confidential and should not be discussed with anyone outside of the interview.
If the employee violates this policy, they can be disciplined.
Q: Are you able to force a witness to participate in an investigation if he/she was named by the harassed as a witness? What do you do when potential witnesses refuse to be involved?
A: If employees refuse to participate in a workplace investigation, they can be terminated for cause.
There was a court case in 2016, Gilman v. Marsh & McLennan Cos., No. 15-0603-cv(L), in which the U.S. Court of Appeals ruled an employee can be terminated for cause if they refuse to participate in an investigation.
The second circuit court stated, the deciding factor was whether the orders to cooperate in the interviews were reasonable. If so, the employees could properly be terminated for cause for refusing to “obey a direct, unequivocal, reasonable order of the employer.”
Q: What do you do when the behavior has been reported and management does not address the behavior and it continues?
A: If the person who the claim was made to does nothing to investigate the claim, the employee can take the claim to another member of management, or they can take it directly to the applicable state agency or the EEOC. If you are a member of management and are aware of a claim, you have a responsibility to take it to a higher level of management or an owner.
Q: I went to the EEOC’s website and could not locate the types of questions they use in an investigation. Or should I have clicked on the link to file a report?
A: The link to access the interview questions on the EEOC site is eeoc.gov/policy/docs/harassment.html. The questions are located about halfway through the page.
Q: What if no one is allowed to make a complaint to HR? In our organization, employees are told they can’t contact HR for anything and they can only go to their supervisor, even when they have a problem with their supervisor.
A: One of the main roles of human resources is to support employees and help keep the company compliant with state and federal employment laws. Human resources plays a significant role in mitigating a company’s exposure to potential liability for employment-related issues.
We would encourage you to revisit your current policy and strongly encourage you to implement an open-door policy. A significant part of an effective compliant anti-harassment policy is to provide multiple methods of reporting claims, including, not only the employee’s direct manager, but also human resources, any member of management, and outside agencies.
Only allowing employees to report issues to their manager is very limiting, especially if the issue relates to their manager. Employees should be provided with more than one option to report issues and concerns.
Q: How can you promise employees that there won’t be any retaliation if as soon as the supervisors find out about employee complaints, they schedule people differently, treat them differently, give them harder tasks, etc.?
A: If a manager takes a negative action against an employee based on the employee bringing a complaint or a concern forward regarding that manager or any other person, the manager should be disciplined and reminded of the company’s anti-retaliation policy. Retaliating against an employee for a protected activity is illegal and could result in a very costly lawsuit for the company.
Below is a link to the EEOC with additional information on retaliation.
Q: What if it’s not a verbal sexual harassment issue but it was a visual offense? Also, what if employees mistake sexual harassment as “just horsing around?”
A: Regardless of whether the offense is verbal or visual, you will want to investigate the matter.
While conducting an investigation, you may determine more often than not, that a harassment complaint represents inappropriate workplace behavior. The employee displaying the inappropriate behavior should be counseled and potentially disciplined.
This is also an opportunity to communicate to all employees the expectation for workplace behavior.
Q: If a person is making a complaint against someone, doesn’t the accused have the right to know who the accuser is and the specific complaint? I know that you advised not to ask leading questions and don’t just openly ask “did you do xyz…?”, but at some point, they should know what the exact complaint is and who complained since there should not be any expectation of confidentiality during an investigation.
A: An investigation should always be kept confidential and only those conducting the investigation should have the full details.
An employer is not required or obligated to disclose who filed a concern and the specifics of the concern/complaint. You want to ensure confidentially as much as you possibly can. Retaliation and backlash concerns become all the more significant if the accuser and the specific claim was disclosed to the accused.
As such, you are not required to tell the accuser about the specific outcomes of the investigation nor the specific action that was taken, only that an investigation was conducted, and the appropriate action was taken.
Q: If any person who makes a complaint, is a witness, is the accused, etc. during an investigation does go back to their work area or even outside of work and discusses the case, questions asked, their responses with other potential witnesses… can the employer discipline them or should we at least make them aware that their activity has been reported and give them a verbal warning. I feel that by that time they may have already contaminated other witnesses and even caused further disruption to operations.
A: You want to ensure you are opening your investigation interviews with the statement on confidentiality and the consequence if confidentiality is breached.
If you’re concerned about confidentiality, you may want to place the people involved on a paid administrative leave until your investigation is completed. If an employee is being placed on administrative leave, you want to be sure you communicate the expectation for confidentiality and communication with coworkers while on leave.
If an employee does speak to coworkers or other witnesses, you want to be sure to take prompt and immediate disciplinary action which could include termination.
This is just a taste of the helpful information being shared at KPA’s webinars. Register for an upcoming session today.