Down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. The detective must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, a man of honor.
Raymond Chandler, “The Simple Art of Murder” (essay, first appeared in The Atlantic Monthly November 1945)
The development of employment law has given rise to a type of detective that Raymond Chandler probably did not anticipate: the workplace investigator. Chandler’s description of the investigator is relevant whether an investigation involves criminals, as in Chandler’s books, or misconduct in the workplace. Chandler’s famous character, detective Philip Marlowe, conducted investigations with which human resources management are familiar.
For example, in The Big Sleep, Marlowe investigated a retired oil executive’s concern that his daughters were being blackmailed by a local pornographer. Similarly, human resources professionals unfortunately must look into allegations of salacious misconduct in sexual harassment investigations.
The Obligation to Conduct Investigations of Workplace Misconduct
Timely and well-executed investigations are a significant part of an employer’s strategy to limit liability for employment-related claims. Both California and federal anti-discrimination laws virtually require employers to investigate claims of discrimination and harassment in the workplace. Neither statutory scheme expressly requires employers to investigate complaints. No law prescribes the method for doing so either.
But California Government Code section 12940(k) requires employers to take “all reasonable steps to prevent discrimination and harassment” on the basis of any protected category. Employers also must take “immediate and appropriate” corrective action to avoid liability for harassment by non-supervisors. Federal law provides even broader protection when employers take prompt action to remedy claims of workplace discrimination, harassment or retaliation. Punitive damages liability under federal law may be avoided if the employer makes good faith efforts to comply with the law.
The quality of an investigation will be reviewed by employees’ lawyers, courts, and juries. A perfunctory investigation may be used as evidence of indifference, which may give rise to additional potential liability, even punitive damages. As one federal court of appeals remarked in an opinion: “We have never held that an employer acts reasonably where a supervisor receives a credible complaint of sexual harassment and no effort is made to contact the alleged victim.”
Although investigations naturally take place after a complaint occurs, they actually are part of an employer’s strategy to prevent liability. A sound anti-harassment policy prohibits conduct that is insufficient to support a finding of liability for harassment under the law. The investigation instead focuses on whether the policy was violated, allowing management to take action before a claim may be successfully pursued in court.
Sexual harassment complaints are among the most common bases for internal investigations. But the law also requires investigation of discrimination and harassment because of race, religion, or any other protected category. The many available grounds for retaliation claims, particularly in the area of wage and hour law, similarly should be investigated to prevent liability and remedy misconduct. Whistle-blowers are protected by a number of laws, such as the federal Sarbanes-Oxley Act. Internal Investigations may be necessary to respond to government agencies’ own investigations as well.
The importance of investigating workplace complaints is not open to serious dispute. However, as stated, the laws do not provide employers with any guidance as to how they should be conducted. Employers may find assistance from a number of external sources, even Raymond Chandler.
“Neither Tarnished Nor Afraid”
To achieve effective results, an investigator must be uncorrupted. Employees will not discuss their concerns openly and honestly if they believe the investigator is “tarnished” by a close relationship with the alleged perpetrator of the misconduct. Similarly, if the investigator is involved in the incidents giving rise to the complaints, the investigator may be accused of “bias.”
An inexperienced investigator (such as a supervisor who has not conducted investigations before) may not have the confidence or skills necessary to effectively investigate. Junior supervisors may feel intimidated by the nature of the allegations, the consequences of uncovering a problem, or may be reluctant to substantiate a claim against another manager.
When meeting witnesses, including the employee who made the complaint, it is important for the investigator to avoid “taking sides.” It is impossible to complete an impartial investigation without keeping an open mind. It also is unwise to make any promises about the outcome, whether to the complaining employee or the subject of the complaint.
The nature of the allegations, including the individuals involved, may suggest the need for an external investigator. Outside investigators (as opposed to borrowed supervisors or Human Resources staff from within the company) may not be as fearful of (or vulnerable to) reprisals. It is harder to accuse an outsider of bias, or of promising specific treatment to witnesses, the accused, or the complainant if they cooperate. The outsider typically does not have the power to deliver on these alleged promises.
As Chandler points out, an investigator should not be “mean.” It may be easier for the outside investigator to ask potentially embarrassing questions. The outsider also may be able to resolve credibility issues (including evaluating and reporting on who is untruthful during the investigation), without the possibility of seeing the witness every day around the office when the investigation is complete.
“Complete, Common, and Unusual”
To ensure the investigation is credible, the investigator must be one in whom the complaining employee and witnesses can trust. Most employees reporting sexual harassment or making other complaints about workplace conditions are reluctant to do so. Employees may have negative preconceptions about what to expect when they complain. Movies and television dramatizations may create unreasonable fears of conspiracies, overt or subtle retaliation, and the like. The investigator must demonstrate through the interview that he or she is not predisposed to a certain conclusion or hostile to the complainant or the accused.
Both the complaining witness and the alleged wrongdoer should be advised of the process that will be followed during the investigation. The communication may include the following elements: an investigation will be conducted, management will review the findings to determine if any policies were violated, and the violator’s managers will make a decision about appropriate action to be taken, if any. The complaining employee and the alleged wrongdoer should be advised that the investigation will take a reasonable amount of time.
Attorneys conducting investigations should accurately explain privilege-related issues to the client-employer and possibly to witnesses. Many internal investigations conducted are not privileged because the employer will seek to rely on the investigation and its results as part of its defense to liability. The investigator must assess how non-privileged communications will be received.
Attorneys know the difference between representing an employer and representing its employees as individuals. However, employees interviewed may mistakenly believe they have a privileged relationship with an attorney sent by the company. An attorney investigator should inform witnesses that the employer is the client, not individuals. As stated above, the lawyer also must determine whether the attorney-client privilege will apply to a communication and conduct the interview accordingly.
Employees interviewed should be advised that the investigation is a confidential process, but that all information exchanged cannot remain entirely confidential. It may be appropriate to say that all information about the investigation is shared only on a need-to-know basis. Witnesses should be advised not to discuss the investigation with anyone except the investigator. Witnesses should be reassured that there will be no retaliation for providing information or participating in the process. Management must take the employer’s policy against retaliation seriously and enforce it. Retaliation claims are typically more potentially dangerous than the underlying complaint.
The investigator should attempt to determine if the witnesses’ perceptions are consistent with or contrary to those of the complaining employee. This can be done by eliciting general information about the nature of the work environment and reviewing the specific complaints under investigation. It is important for the investigator to determine whether the witness actually witnessed any of the events complained of or is aware of those who witnessed any of the events.
“Disgust for Sham and Contempt for Pettiness”
Some complaints may involve serious misconduct, such as the pornography-and-blackmail Marlowe investigated. However, complaints that an employee was the victim of “dirty looks” as part of an ongoing pattern of retaliation also may be the subject of an investigation. If the facts reveal that the complaining employee’s allegations are conclusory (a sham) or mere pettiness, the investigator must be prepared to say so. However, the investigator must also consider the context of the complaint and whether the broader pattern of conduct could indicate a larger problem.
During the interviews, the investigator must not accept mere conclusions from the individuals interviewed. An investigator is attempting to discover the facts. The investigator should avoid generalities in asking questions and force the witnesses to explain exactly what was said or done.
One of the investigator’s primary responsibilities is to determine which allegations can be proved and which cannot. The essence of the interview is to determine the answers to five basic questions: What happened? When did it happen? Where did the events occur? Who was present or may have witnessed the events? Why – or how – did the event occur?
Each interview should be thoroughly documented. The investigator should take detailed notes. Where certain answers are particularly crucial, it is important that they are taken down verbatim. The notes should designate with quotation marks when the witness is quoted.
One of the investigator’s final responsibilities typically is to prepare a report of the investigation, which may include any statements or documents supporting the conclusions. The report should be drafted with the understanding that it may be reviewed by any of a number of internal and external recipients. Therefore, the investigator should take the time necessary to ensure it is well-edited and organized. The thoughtful investigator considers sentence structure and even word choices, as they may become significant if the investigated matter ends up in litigation.
Along with the report, the file should consist of contemporaneously prepared and dated documents that would help someone reviewing the file to understand what happened and when it happened. This information is critical to establishing whether the employer promptly investigated the matter, and what action was taken in response to the allegations.
When the investigation is complete, the results should be communicated to the complaining employee and the alleged wrongdoer. Complaining employees that are “left hanging” may conclude their concerns were ignored or swept under the rug. Management should be clear about who is responsible for this communication.
If the claims are substantiated, the wrongdoer may be subject to some form of discipline. The nature of the discipline need not be disclosed to the complainant. It is sufficient for management to say that it took appropriate action to remedy the situation.
The complaining employee should also be encouraged to report any further problems in the workplace, including any retaliation as a result of filing the complaint. Human resources or another appropriate internal unit should follow up affirmatively within the following 30 to 60 days to ensure that the employee does not feel he or she has become the victim of retaliation. Finally, whether or not the accused employee is found to have violated a policy, it is important to advise the employee that retaliation against the complainant is prohibited by the organization’s policy.
Workplace investigators face the same challenges as Marlowe did — understanding the focus of the investigation, conducting thorough interviews of witnesses and reached reasoned factual conclusions. An effective investigator can save an organization time and money — employers should choose their investigators carefully and ensure they are up to the task at hand.