Employers’ obligations to investigate workplace-related claims do not end when the complainant or the accused no longer works for the business.
Former employees’ complaints come to employers’ attention in different ways. The employer may learn about a concern during an exit interview. An ex-worker may raise an issue, directly or even through social media, long after they left employment. When a former employee’s complaint involves legal issues such as unlawful harassment, discrimination, or even wage-hour practices, the employer may receive notice of an agency proceeding or a lawyer’s demand letter.
Allegations also can be made against a former employee. Current employees may raise concerns about their now-departed manager’s conduct that require investigation. Sometimes management discovers malfeasance after the employee’s departure, or the employee’s replacement reports irregularities that become apparent once the employee is gone.
The obligation to investigate a former employee’s complaint, or a complaint against a now-departed employee, depends in part on the subject matter and applicable law, as well as business realities. For example, equal employment opportunity laws prohibiting employment discrimination, harassment, and retaliation require employers to investigate former employees’ complaints. The employer must take immediate and appropriate corrective action to remedy unlawful acts, whether or not the alleged victim remains employed. In addition, employers have a duty to prevent future illegal conduct for remaining employees. A proper investigation may help the employer achieve these objectives and minimize legal risk. Of course, the duty to investigate is reduced if, for example, the misconduct occurred so long ago that a claim cannot be pursued in court and the bad actor is no longer employed.
Other laws may require different employer responses. For example, securities laws and regulations, government contracts, ethics standards, corporate by-laws, and other laws and rules may impose obligations different from those associated with equal employment opportunity laws. The employer’s obligation to investigate complaints involving former employees must be tailored to these standards as well.
Even when no legal requirement exists, employers often investigate issues involving former employees as a matter of good business practice. For example, employers may wish to audit a department experiencing high employee turnover, or investigate a report that a worker is submitting phony expense reimbursement requests, or is wasting time on the clock.
Investigations involving former employees naturally may pose challenges. Employers may require current employees to participate in investigations. They have no such control over former employees. Some ex-employees may have information to share, but have moved on to new employment, are busy, or do not wish to be involved.
Although employers cannot force former employees to help, they can train current employees to participate in good faith, even after they depart employment. Employers also can explain the important benefits of thorough, objective investigations into wrongdoing generally, and the benefits of former employees’ cooperation in particular.
To facilitate former employees’ participation in investigations, employers should attempt to address their needs and concerns. Investigators should be prepared and respectful of former employees’ time, keeping interviews brief and limited to essential information. The interview may need to occur after work hours or at a location convenient to the former employee. The former employee also may insist that an attorney or a family member be present during the interview, something the investigator should carefully consider. The investigator should be prepared to address questions from the former employee about the investigator’s role with the organization, competence, and even the investigator’s hostility towards the organization. The investigator also must be ready to address the former employee’s concerns about confidentiality and retaliation.
Even if a former employee refuses to participate, the employer should still pursue an otherwise necessary or prudent investigation. Other witnesses should be questioned, documents reviewed, and forensic evidence examined. Even without the former employee’s participation, the employer should determine to the extent practical whether alleged misconduct occurred, and what preventive steps the employer should take in the future.
Employers should “close the loop” with former employees who raise concerns, just as employee’s concerns were received, appreciated, and taken seriously, including any remedial actions taken in response to the complaint. However, it is not necessary to detail specific personnel actions against employees, if any. The employer also should remind the ex-employee that the employer prohibits retaliation, and provide contact information for questions and further concerns.