Picture it: An employee comes to you with a harassment or discrimination claim. While not pleasant to hear, it’s a part of the job, and you immediately enact your company’s investigation plan. But have you — or anyone else within your organization — considered that there may be flaws in your process that make you vulnerable to litigation? Even if you work hard to do everything by the book, you could still fall into one of these common workplace investigation traps.
- Promising to keep things confidential. Because of the sensitive nature of workplace investigation cases, one or more key witnesses may ask to keep their statements confidential. Often, the investigator will agree to do so, when in reality, the witness statements will likely be shared with management, other witnesses to ensure a thorough and accurate fact-gathering process, and if there’s ever litigation, the statements will be shared in court.
- Delaying the start of an investigation. Across the country, harassment and discrimination laws demand that companies move quickly to investigate any claims brought forth by employees. Legal mandates aside, if the case were to go to jury trial and there was a significant lag time between the initial complaint and the start of the investigation, jurors may start to believe that the investigation simply wasn’t a priority for the company.
- Selecting investigators who have conflicts of interest. The investigation should be led and conducted by people who have no ties to the incident in question or any of the parties involved. This helps to ensure that personal bias does not compromise the integrity of the investigation, and that the outcome is fair for all.
- Losing evidence. At the start of an investigation, an evidence log should be created that tracks the “chain of custody” for all relevant evidence. The log should include how the evidence was obtained, by whom it was obtained, and when. The evidence should also be stored so that the subjects of the investigation are unable to destroy or alter it.
- Inadvertently punishing the complainant. In an effort to make the work environment more comfortable during an investigation, the employer will opt to transfer the complainant to a different department or place them on paid leave. While the intentions are usually good, actions like these could be perceived as embarrassing to the “victim,” and likely won’t play well in court, should litigation result. Instead, employers should transfer the accused, or suspend the accused with pay pending the outcome of the investigation.
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