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Common Risky Employer Mistakes in a Workplace Investigation

The need for workplace investigations usually arises suddenly and without warning. Company management receives a complaint (most commonly a sex harassment complaint or a complaint of discrimination) and often does not know how to proceed.

As a management-side labor and employment law firm, the attorneys in our law firm frequently receive calls from clients wanting to know how to handle an investigation after receiving a complaint. The purpose of this article is to highlight some of the mistakes we frequently see.

MISTAKE #1: Not carefully reading over your Company's policy on investigations in response to a workplace complaint (for example, a sex harassment complaint).

RISKY BECAUSE: The Company's policy may contain very specific procedures. For example, the Complainant will be told the outcome of the investigation. (Another example, the Complainant will be given a copy of the Investigation Report.)

MISTAKE #2: Not keeping detailed notes of exactly what behavior the Complainant is complaining about.

RISKY BECAUSE: The Complainant may change the nature of the allegation(s) over time.

MISTAKE #3: Not giving the accused a full and fair opportunity to be heard.

RISKY BECAUSE: The Company should strive to be thorough, fair, and adequately question all parties.

MISTAKE #4: Not questioning all possible witnesses to the incident(s).

RISKY BECAUSE: The Company needs to know the extent of the problem; corroboration by witnesses can be very valuable.

MISTAKE #5: Promising the Complainant absolute confidentiality during and after the investigation.

RISKY BECAUSE: Many people will be involved in a workplace investigation. A Company can strive for confidentiality but should not guarantee it.

As employment lawyers, we often see our clients struggle to make sense of the findings of a workplace investigation. Company management frequently finds no definitive evidence of wrong doing. For example, perhaps it was a he said/she said situation and no one can be totally sure of exactly what occurred.

Depending on the findings of the investigation, companies often have a wide variety of reasonable options- verbal warning; written warning; suspension with or without pay; one-on-one sensitivity training; termination. Even where there is no proof of wrong doing, it may be wise for a Company to do anti-harassment/anti -discrimination training, either for just the supervisors or the entire workforce.

The lawyers in our firm are available to assist with the proper procedures of the investigation and also how to evaluate the findings and determine an appropriate corrective action. Also, it's a good idea to have us review your Anti-Harassment policy to make sure it is not unnecessarily complex and that it provides management with enough flexibility.

For assistance with harassment or discrimination issues or training managers/ supervisors about how to identify and deal with harassment, contact Attorney Nancy E. Joerg who can be reached at Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at [email protected]. If you would like a free copy of Nancy's step by step article on how to conduct a workplace investigation, contact Legal Assistant Tammy Nelson at 630-377-1554 or email her at [email protected].

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