Following the recent wave of sexual harassment and assault allegations, a wake of news stories emerged about how HR departments have failed to conduct proper investigations into such complaints. Women claimed HR failed to write down their complaints or take any action; one woman claimed HR told her “We don’t want to get involved in this.” The stories asserted that HR “is supposed to protect the company’s interests,” not the employee’s. But as any experienced employment lawyer or HR manager knows, HR cannot protect the company if it conducts a subpar investigation.
Two of the most common harassment investigation missteps include (1) using investigators that lack sufficient training about how to conduct an investigation, and (2) failing to involve legal counsel at the right time.
Indeed, properly conducted investigations can in some instances relieve the company of all liability. In contrast, poor investigations can expose companies to even greater legal risks. For example, a state supreme court recently upheld a $200,000 punitive damages award on top of $40,000 in compensatory damages against a company in part because of its wholly inadequate investigation into a sexual harassment complaint.
Of course, before we can talk about proper investigation protocol, the company must have policies in place prohibiting harassment and retaliation, informing employees how to report harassment, and providing multiple mechanisms for reporting complaints. Assuming that the company has proper procedures in place, companies should examine what happens after an employee reports a complaint, with a focus on these two common issues:
Companies must train those responsible for conducting sexual harassment investigations before a complaint is filed and then repeat that training periodically. Even seasoned investigators can forget basic investigation steps like:
- Interviewing the person accused of harassment;
- Interviewing all witnesses;
- Documenting witness statements;
- Examining and retaining key documents (including video footage); and
- Following up with witnesses after documents refute their version of events.
For example, in a case where an employee alleges certain events occurred in the office on a Tuesday at 5 p.m., investigators should check work schedules, security footage, or building access records to determine whether the individuals involved were even on the premises at the time. If an individual claims they weren’t in the office but the documents show otherwise, the investigator must follow up with that individual.
When examined three years later at trial, investigative missteps seem obvious and can suggest the company intentionally turned a blind eye.
Know When to Involve Legal Counsel
In a perfect world, legal counsel would conduct or oversee all investigations to ensure the investigation is legally compliant and to protect certain documents under the attorney-client and work product privileges. But if legal counsel cannot oversee all investigations, then those responsible for the investigation must know when the severity of the allegations warrants bringing in legal counsel. If in doubt, investigators should play it safe and call legal counsel.
If the complaint involves widespread misconduct, high ranking executives, key individuals, or individuals within HR, investigators should immediately consult with legal counsel. In such cases, the company should typically hire an outside law firm to conduct the investigation because it (1) lowers the chance that an investigator will conduct a biased investigation or turn a blind eye; (2) lessens the perception that investigators lack objectivity; (3) sends a strong signal that the company takes the accusations seriously; and (4) creates a privileged investigation file. The company can then produce a non-privileged report for use as evidence that it conducted a thorough and proper investigation.