Jodi Luna, Specialized Legal Services
Between 1997 and 2011, the number of charges filed each year with the EEOC has risen from 80,860 to 99,247. While there has been a decrease in the number of charges related to discrimination, retaliation charges now comprise the majority of charges, or 37.4 percent. And, even though there are fewer charges relating to gender harassment/ discrimination, for example, the cost of damages against employers has remained consistent. There is, therefore, a continuing need for employers to conduct investigations of internal complaints lodged by employees, particularly those that create legal liability.
For those responsible for investigating these complaints, it is important to (1) investigate promptly; (2) select the appropriate investigator; (3) conduct a thorough investigation; (4) resolve the allegations; and (5) take appropriate action.
Steps two, three, and four correspond, as an investigator who is objective and trained in the area of investigations is best able to ensure a complete review of the issues at hand. That investigator should also be able to appropriately and definitively assess the credibility of witnesses, make findings, and document the reasons for those findings. As noted, it is important that all issues are resolved, even those that are complicated by conflicting versions of events. Finally, even the best investigation serves little purpose if the employer fails to take action with respect to any negative findings. Even if the investigation reveals no inappropriate conduct, it is still important to follow up with the parties involved to advise them that the investigation has been completed.
In implementing these processes, the employer should communicate clearly with the employees who participate in an investigation about particular expectations, such as the need for employees to cooperate fully. Previously, an additional expectation in most investigations was that the participants keep the investigation information confidential. That has changed, however, due to a recent decision in which the NLRB concluded that, before directing confidentiality in an investigation, an employer must first determine whether witnesses need protection; evidence is in danger of being destroyed; testimony is in danger of being fabricated; or there is a need to prevent a cover-up.
Thus, the employer’s decision about whether to require confidentiality among employees must now be made on a case-by-case basis. Banner Health System d/b/a Banner Estrella Medical Center (2012).
MSEC can assist members by conducting thirdparty investigations. We also offer training in investigations, including Investigations in the Workplace on April 24, and Investigations in the Workplace: Two-Day Workshop on May 21-22.