When an employee files an internal workplace complaint, the resulting investigation is an important employee relations risk management tool in the company's response protocol. Done properly, investigations are instrumental to avoid litigation, provide defenses to employers and help mitigate any possible damages. Alternatively, employers who fail to investigate complaints — or who do so inadequately — may expose themselves to greater potential liability in ensuing lawsuits and agency proceedings. Therefore, understanding not only the mechanics of a good investigation, but also how to influence and persuade around its recommendations, is key.
One of the primary elements of a proper investigation is coming to a recommendation that is discussed with key stakeholders. There are a few important components of making a recommendation:
1. Reviewing the evidence and reaching a conclusion about whether a policy violation occurred.
2. Evaluating the proper response to the findings (i.e., if a violation has occurred, deciding what action will balance business needs with legal exposure, reputational risk and employee welfare and engagement).
3. Influencing corporate partners and decision makers to adopt one’s recommendation.
In most organizations, the human resources team will issue an investigatory recommendation, rather than a directive or order. The corporate partners and decision makers will be best persuaded to adopt the investigator’s recommendations when the investigator is well able to communicate the relationship between the evidence that they have gathered and their findings. A number of factors play into this. They include, but are not limited to the consistency (or lack thereof) of the evidence, the credibility of the witnesses (body language, apparent motives, level of willingness to share, etc.) and the nature of the objective data.
Additionally, critical to influencing others is crafting a recommendation that makes sense, given the context of the situation. The recommendation should be in line with precedent around how similar matters were dealt with in the past. To ensure such alignment, the company should already have a reliable system in place for finding and reviewing past cases. Failure to achieve such consistency can lead to claims from the accuser that their claim, though substantiated, was not treated as seriously as other similar claims. Surprisingly, perhaps, inconsistency can also lead to a claim by the accused that they were much more severely punished for a similar offense than others had been previously due to a protected characteristic they may have (i.e., race, religion disability, etc.).
In addition to looking at past precedent, the investigator should also consider the seriousness of the initial complaint, the danger of recidivism, the risk to other employees and the accused’s disciplinary record, other history with the company and attitude about the offense. Creative recommendations that balance business needs with the human resources process will often be most appreciated.
While strong evidence and a creative, well-crafted recommendations are necessary, pre-existing cultural and political capital are golden. The investigator’s recommendations will receive the most favorable response when there is strong leadership at the head of the human resources department and when there are strong strategic partnerships, as with general counsel or the legal department. Additionally, internal, established relationships with business leaders help promote acceptance of human resources’ guidance.
