Got a complaint from an employee? Investigate it.
If that complaint turns into a legal claim, part of the allegation of wrongdoing may well be that the office “didn’t take it seriously and failed to investigate,” says employment law attorney Ingrid Culp of Fredrikson & Byron in Minneapolis. The law doesn’t require that an employer investigate a claim, she says. But it is an expectation, and failure to do so “gives a lot of ammo” to the plaintiff’s attorney.
Waste no time!
The first factor is the timing. Don’t wait. Investigate the complaint fast.
It’s not uncommon for a complaint “to sit on the manager’s desk and get stale before the investigation is commenced,” Culp says, and during the wait, the witnesses are forgetting what happened.
Worse, if the complaint is about violence or drug or alcohol use, “there can be safety issues” the office needs to address.
Worst of all, however, if the matter goes to court, the staffer’s attorney is going to pounce on the delay as an indication the doctors didn’t take the complaint seriously.
If a delay can’t be avoided, perhaps because a witnesses is on vacation, tell the staffer what’s happening and when the investigation will start.
Vague is still good
As to which complaints warrant investigation, the answer is all of them. Never dismiss a complaint because it’s vague. “Employees don’t have to say directly that they are being discriminated against.” There doesn’t have to be a clear accusation such as, “I was sexually harassed by Doctor A.” It’s enough to say, “I think Doctor A is playing favorites” or, “I think he’s angry because he’s been asking me out and I’ve been turning him down.”
Call in the right investigator
As to who does the investigating, the obvious concern is that it not be anybody involved in the complaint or who has ties to either side.
Neither should the investigator have anything to lose by looking into the matter. For example, the manager shouldn’t conduct the investigation if the accused is the senior physician.
The investigator should also be someone the victim is comfortable with. If the victim is a woman, it may be best to assign the job to another woman.
And in some instances, the only way to ensure a fair investigation is to bring in an outside investigator. Mostly, that’s when the accused is part of the executive team. But it can also be the best choice when the allegation is of egregious behavior.
The same holds true if nearly all the employees are men and a woman makes the complaint or if everybody in management is Caucasian and the complaint comes from a minority.
Listen to the entire story
Once into the investigation, take the time to hear the full story. Get the who, what, where, and when. Ask if there were witnesses. Ask if there is documentation to substantiate the claim. Do that even if it’s obvious the complaint is valid or invalid. Cut it short and the victim may later claim the doctors didn’t care about the situation and the manager was just going through a formality.
Anything else?
At the end of the conversation, ask an important question: “Is there anything else?”
The goal of an investigation, Culp says, “is to get the full picture,” and that final question often elicits information the employee wouldn’t otherwise have brought up. For example, the staffer might mention that another person was involved or even say something such as, “Do you want to see the e-mails he sent me last week?”
Should the matter go to court, showing that the office asked that question is proof the victim was fully heard, and that will be essential to the defense.
No hearsay, please
As for the witnesses, interview only those who actually saw the incidents or overheard conversations between accuser and accused.
Ask them solely about the incidents they witnessed, not about other events related to it. If the victim reports 40 incidents of harassment but the witness saw just one, ask about that one incident and no more.
That protects the accused. It maintains privacy and lessens the chances of a later claim of defamation.
Interview the accused as well.
Employers often bypass that, “sometimes because it’s uncomfortable” and sometimes because the facts lean so heavily in the victim’s favor that there doesn’t seem to be a need for it, Culp says.
But it’s only fair to do so. “The accused deserves to understand what the allegations are,” Culp says. What’s more, interviewing the accused clarifies “what is and isn’t tolerated” in the office.
In some instances, it even uncovers a bigger issue than the victim was aware of.
Report back to the complainer
After the investigation, go back to the victim and explain what has been uncovered and what the office’s decision is.
Failure to do so “can result in a really frustrated employee who talks to legal counsel about a complaint that fell on deaf ears,” Culp says.
Tell the staffer “thank you for coming forward. We took your complaint seriously, and we have investigated it.”
If the accusation has been found valid, explain that “here are the changes we have made to address your concerns” or simply “we have taken corrective action.”
If the complaint has been found not valid – and even if there’s suspicion it was malicious – tell what the investigation showed and explain why the action is not considered harassment or whatever.
And either way, tell the staffer to feel free to report any concerns as well as any retaliation that occurs.
Some of the turning issues in a discrimination matter, Culp says, are whether the employer had a culture that encouraged employees to come forward with complaints and whether the employer protected its employees from retaliation.
