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Image: Kirschenbaum & Kirschenbaum, P.C.
Image: Kirschenbaum & Kirschenbaum, P.C.

Since 1977, Kirschenbaum & Kirschenbaum, has provided the highest quality legal advice and services, whether litigous or transactional.

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INVESTIGATING WORKPLACE MISCONDUCT

Every employer, at some point, will have to confront a misconduct issue. Most will not require investigation. However, in order to resolve a dispute between co-workers or evaluate a charge of harassment or theft, a properly conducted investigation is key. And the opposite is even more compelling: the 6th Circuit Court of Appeals has upheld a jury award in excess of $1,000,000 including punitive and compensatory damages based on an employer’s failure to conduct a proper investigation in response to a complaint of workplace discrimination.

Your employee handbook should state a clear policy that you will promptly investigate all alleged harassment or discrimination. I am frequently asked whether the employer has this obligation when the victim has not formally come forward. The answer is a resounding yes. The obligation to investigate may arise from an informal complaint, anonymous tip, information obtained from non-employees, information provided during exit interviews or any other method of communication. Regardless of whether the complaint was in writing and presented to the appropriate person on the chain of command, you should conduct an investigation. A common defense is that the worker asked for confidentiality. Your policy should reflect that confidentiality will be provided to the extent possible but cannot be guaranteed.

If the “perpetrator” acknowledges the allegations immediately, your investigatory practices will be abbreviated but it is always a good idea to investigate to some degree to insure that the individual isn’t taking responsibility for something he actually did not do in fear of arrest, financial repercussions or loss of reputation. Whenever an employer investigates allegations, it sends a message to all employees as to your posture on inappropriate conduct, particularly ZERO TOLERANCE for harassment or discrimination.

It is equally important to place the right individual in charge of the investigation. The investigator must be perceived by all interested parties as unbiased in order to maintain the integrity of the investigation and “buy in” with the results. The investigator should be supported by legal counsel at every step of the process. Counsel is experienced in knowing what questions must be asked and answered in order to connect the dots rather than reaching potentially unsubstantiated conclusions.

An investigatory report should be prepared and the target should be given an opportunity to provide rebuttal information which may require further investigation. Once conclusions are reached, they should be communicated to the complainant in an objective and clear manner. Discipline should be administered pursuant to the terms of your policy and the report maintained in a secure location. It is essential to ensure that no retaliation results to a complainant and that information received is disseminated only on a need to know basis.

One question that has arisen recently in the courts is the propriety of destroying investigatory notes or preliminary draft reports. Many prosecutorial agencies as well as employers have done so to estop FOIL (Freedom of Information Law) discovery of notes which contradict or do not support the final report; however, recently the federal courts have taken great umbrage against these practices.

Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.

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