How Should an Employer Conduct an Internal Investigation into Allegations of Harassment?

Both New Jersey and the Federal government have established laws prohibiting workplace harassment in any form including discrimination that is based on a person’s race, color, religion, sex (including gender identity and pregnancy), national origin, age, disability, genetic information, sexual orientation, or marital status. In addition, these laws prohibit retaliation against any employee who invokes his or her right to a workplace free of discrimination and harassment.

Internal investigations by employers into allegations of unlawful harassment and other workplace misconduct are becoming more and more common in today’s work environment. The practice of conducting workplace investigations is often the best way to avoid litigation, as employees who feel their employers have heard their complaints and taken appropriate action are typically less likely to seek redress in court. In the event an employee does decide to pursue legal action, however, an employer’s internal investigation of a complaint can play a crucial role in developing a comprehensive defense against potential claims of liability.

Solution: Conduct Workplace Investigations In a Timely and Effective Manner to Minimize Risk of Legal Exposure to the Employer.

First and foremost, employers should have anti-discrimination policies in place that prohibit all forms of harassment under federal and state law. In addition to distributing these policies to all employees, employers should ensure that supervisors and managers are trained on executing these policies appropriately and consistently. Once employers are placed on notice of potentially discriminatory conduct, the following steps should be taken in connection with any sort of internal investigation:

• Identify When the Investigation Should Begin: Federal and state law encourage prompt action by the employer in response to claims of harassment. If there is a threat of workplace violence, conducting an immediate investigation is imperative.
• Determine Who Will Conduct the Interview: One of the biggest decisions employers face when conducting an internal investigation is whether to use an internal investigator or a third-party investigator. Advantages to using an internal investigator include familiarity with the corporate culture and the personalities involved, as well as the policies implicated. Internal investigators may also hold credibility with the witnesses provided he/she has a reputation for being fair with his/her colleagues

On the other hand, using an external investigator will likely increase objectivity, thereby reducing any perception by employees that the investigation is unfair or skewed. In addition, using a third-party investigator will bring a degree of experience and professionalism to the investigation that may not otherwise be found with an internal employee.

• Make a List of Who Should Be Interviewed: Consider interviewing all individuals with potential knowledge, including former employees.
• Explain the Process to the Complainant and the Witness: It is critical that the investigator clearly state that complete confidentiality is not guaranteed and that information will be shared with individuals who have a need to know. The investigator should also inform each witness that they must provide candid and truthful information. If false information is provided, the witness may be subject to discipline including termination.
• Document the Investigation: It is crucial that any information learned during the investigation is documented. Some employers choose to record the investigative interviews. By recording the interview, employers are ensured a complete and accurate record of information. However, in doing so, employers should be mindful that recording devices often have a chilling effect on the interview process in that employees tend to hold back information that they may otherwise share.

Regardless of what method of documenting is used, an employer must keep in the back of its mind that all documents and information gathered during the course of the investigation may be subject to discovery should litigation ensue. Therefore, it is crucial to avoid speculation and personal conclusions when documenting the investigation. Rather investigators must remain objective and create an accurate and complete record to the best of his or her ability.

Should you have any questions about the investigation process or claims of harassment in general, please contact our office directly.