Knowing When an Employee Complaint Turns into an Investigation and What to Do Next
By Zoe Stanley
An employee just made a complaint to human resources or their manager – now what? Do you know the process for conducting workplace investigations? Well, the following steps you take as an employer are critical in approaching the situation correctly and with empathy.
We must first consider the differences between handling a common employee complaint and a workplace investigation. An employer should also know the circumstances of when an employee complaint triggers a full-blown investigation and what to do next.
We asked our CEO, Cindy Free, and Head of Consulting, Erin Frost, some questions to help guide employers through this complex process. If you’re unsure about when an investigation is warranted or how to prepare for the process, we encourage you to keep reading!
What do we mean by employer complaint? What is employee relations?
Employee relations deals with the relationship between an employer and its employees, striving to build positive interactions between both groups.
Often, managing employee relations doesn’t go exactly as planned, and the employer might encounter an employee complaint. This employee complaint is often known as an employee relations (ER) issue.
ER issues could include complaints regarding pay, interpersonal conflicts, attendance, safety violations, harassment, and discrimination. This list is just a small sample of potential complaints, ranging in severity and required next steps.
What is a workplace investigation?
Simply put, a workplace investigation is the process of gathering and evaluating information relating to an employee complaint or allegation.
Once an employee makes a complaint, the employer is legally obligated to investigate the complaint. Conducting a workplace investigation should help determine if anything illegal occurred and what action you should take after that.
As we mentioned, complaints range in severity, and some might not result in a full-blown investigation.
For example, an employee complains that their coworker yelled at them for not doing something correctly. After looking into the situation, you find out the employee was having a bad day and not communicating very well.
While this would be a great coaching opportunity to ensure it doesn’t happen again, nothing illegal occurred here, and you likely won’t need to get legal involved.
On the other hand, if you receive a complaint sexual or discriminatory in nature, the complaint will most likely result in conducting a full investigation involving an employment attorney or a third-party investigator.
A workplace investigation might also occur based on allegations of other illegal misconduct, such as stolen property or insider trading.
Q: What are the main things to look out for that would pivot an employee complaint/concern to conducting an investigation?
A: There are a few main things to look out for, but some of them might be keywords or phrases that someone uses when making their complaint, such as “hostile work,” “toxic work environment,” “discrimination,” “harassment,” “bullying,” or anything to do with protected classes. Additionally, someone may be sharing a complaint in advocacy of something they heard about or witnessed that needs to be addressed.
It’s important for the person receiving the complaint/concern to understand its context. Complaints about a supervisor or someone in a position of power might warrant an investigation versus if a peer displayed the same behavior.
Expert Definition #1: A protected class is a group of individuals protected from discrimination based on race, color, religion, sex (including sexual orientation and gender identity), national origin, age, disability, and genetic information.
Q: What triggers an investigation?
A: An employer has a legal obligation to look into any report of harassment or discrimination, so this would trigger an investigation, which essentially is a fancy word for “looking into something.” Sometimes that can be really simple and easy: talk to the people involved and see what needs to happen next. Sometimes, it starts small and leads to having to include many more people than expected.
Expert Definition #2: Harassment is unwelcome conduct based on a protected class. Offensive conduct might include (but is not limited to) physical assaults or threats, offensive jokes, or mockery.
Expert Definition #3: Discrimination means a person is treated differently or less favorably based on a protected class.
Q: How do you know when to keep an investigation internal or when it’s warranted to bring in an attorney?
A: Great question. Often, with the right tools and knowledge, the bulk of investigations can be conducted internally. However, there are some circumstances where I would recommend leveling it to an attorney or, at a minimum, looping in your HR Annie Consultant to help guide the next steps:
- If there has been a demand for money by an individual or their representative.
- If there are claims of harassment or discrimination that seem to be leading pretty much toward substantiation or possible termination of the accused or others involved.
- If you don’t have anyone internally with the experience to do an investigation.
- If the person the complaint is about is an owner or key leader, or if you feel the bias would be of issue.
- If a previous employee lodges a complaint after they leave the company.
- Suppose you already have an employment attorney (which we recommend). In that case, to protect attorney-client privilege, you should always alert them and give them a heads up so they can direct the investigation, even if they have you do it.
Q: What are some benefits of bringing in someone externally to handle an investigation?
A: There are a couple of reasons for this. An HR professional from a third party can likely have more of an unbiased opinion because they are not caught up in historical context, people relations, or the day-to-day minutia of the company. They can come from a true outsider perspective.
External professionals can also be more formal with investigations where sometimes an owner or manager who would normally be the next point of escalation really shouldn’t be conducting it.
A third-party professional can also provide a summary appropriate to the ownership or leadership team.
External professionals can conduct investigations at the direction of an employer’s counsel and often save money, be in a less intimidating position than an attorney doing an investigation, and still protect privileged information in many cases.
Q: In the context of conducting a workplace investigation, what does it mean when we say we’re “gathering information?”
A: We need to collect the facts. This could include what happened, who was involved, witnesses present, where things occurred, and other documents that might support the information-gathering process.
Additionally, we’re gathering other data and documents related to the claim as necessary, such as employee files, performance records, schedules, and additional notes or communications related to any party involved.
Q: Similarly, what is “fact-based documentation?” And how do you approach this correctly?
A: The best documentation is something the employer has structure for consistency processes, but this just truly isn’t the case. Fact-based documentation means that the investigator, or person looking into the claim, is gathering information that actually happened, was witnessed, supported the allegations, or what people are saying.
Too often, when gathering facts, people provide more what is their gut feelings or speculation. This doesn’t work in the course of an investigation as things that substantiate claims.
Q: Is there any other information you want our readers to know about properly approaching and preparing for investigations?
A: Having a consistent process is key to conducting an investigation. There are a lot of things that can go sideways. Ensuring the investigator is trained and has the proper tools would conduct all investigations similarly.
Document the claims exactly as they are presented, and stay unbiased. Truly, interviewing one person may sound like everything they are saying is true, and as an interviewer, you may be inclined to react in a way that leans toward the direction of the initial claim. Don’t do that.
Investigations can take all kinds of twists and turns, and it is essential to handle them professionally. If you don’t feel confident, don’t do it. Doing it poorly can lead to individual liability, which is nothing an employer would expect of an employee, so don’t offer to put yourself in that position.
Have any questions about your own workplace investigation situation? Conducting workplace investigations can be tricky, and you don’t have to do it alone! We recommend contacting your HR Consultant for guidance and training, or calling your employment attorney.
HR Annie is always here to help and has a list of trusted employment attorney partners we can recommend if you need legal counsel.
Zoe Stanley is the founder of Quill & Pine Digital Marketing and a content marketing extraordinaire. She’s passionate about helping small businesses worldwide achieve their top digital marketing goals. Connect with her to see how she can make your content marketing dreams come to life one blog, email, and article at a time.