Legal Trends: Conclude and Communicate

Follow these steps when analyzing your data and concluding an investigation about improper workplace conduct.

In last month’s column, you learned the basics of gathering information as part of a workplace misconduct investigation—in particular, a complaint of sexual harassment. Now your detective work is done. It’s time to put yourself on the line and decide, based on the evidence, what did or did not happen, and what steps you need to take now. So hang your “Lieutenant Columbo” coat back on its hook and buckle down to the business of drawing your conclusions and communicating the results of your investigation.

Analyzing And Deciding

Once you have completed the interviews, examined the documents and materials, and reviewed the policies, the next step is to organize and analyze the investigatory materials. These would include your notes, witness statements, documents, e-mails, policies and personnel records.

Re-read them against the gut feeling you may already have formed. Play devil’s advocate with yourself. Make sure your left-brain analysis of the materials supports your right-brain inclination. Then get down to the business of drawing your conclusions—or “fact finding,” as we say in the business.

What does it mean to make “findings of fact”? It means making a judgment as to what you believe occurred. A handy standard is what courts call “preponderance of the evidence.” Using it, you don’t have to be absolutely certain. Rather, if you find that a fact is more likely true than not true, you can use that fact to support your conclusion and action plan. In other words, 51 percent true to 49 percent false is good enough, as long as there is a supportable basis for your finding.

To make sure you don’t miss a beat, take the following steps:

Assess credibility. There are many ways to assess credibility. One is controversial—judging credibility by physical signs such as eye contact, body posture and the like. Some investigators believe that body language furnishes important clues as to the truthfulness of the witness, while others maintain that its significance is greatly overblown.

A more standard means of assessing credibility involves reviewing notes, witness statements and documents for inconsistencies, illogical premises, evidence of ulterior motives and past behavior. Also consider whether witnesses spoke from direct knowledge or based on hearsay or speculation.

Another approach, says attorney Paul Prather, of Kiesewetter Wise Kaplan Schwimmer & Prather PLC in Memphis, Tenn., is to examine physical and documentary evidence. These “are the most overlooked types of evidence in investigations and credibility determinations,” he says. “Cases can be supported or refuted by the documents and other physical evidence.”

In one case, for example, an employee claimed a co-worker was harassing and stalking her outside of working hours. The accused co-worker, however, claimed they had become friends and that the complainant had unsuccessfully tried to pursue a romantic relationship with him. There were no other witnesses, but both employees had cell phones. The investigator asked for and obtained the cell phone records directly from the parties involved. An examination of them enabled the investigator to determine who had been calling whom away from work and, thus, make a reasoned assessment as to who was more likely telling the truth.

Evaluate truth and accuracy. What’s the difference between the two? Lawrence Tofel of Tofel, Troup & Partners LLP in New York City, uses a scene from a Pink Panther movie to explain. In the scene, Inspector Clouseau asks an innkeeper, “Does your dog bite?” The innkeeper says no. When Clouseau reaches to pet the dog, it snaps at him. The startled detective says to the innkeeper, “You said your dog doesn’t bite!” The innkeeper replies: “That is not my dog.”

Maria Sorolis of the law firm of Allen, Norton & Blue PA in Tampa, Fla., recounts a real-life example of evaluating truth and accuracy. Sorolis was once called to investigate complaints that a certain employee was “leering” at others.

Here’s what she found: The employee did in fact look at others in a way that might have been unusual. But was he leering? No. It turns out he had a physical condition that created the impression he was staring when he was not.

Look for biases. Consider any cultural, societal or ethnic tendencies that may influence either the perceptions of the complainant or the behavior of the accused, says Sorolis. For example, people from some cultures are more physically demonstrative than others. Others who are not familiar with those norms may erroneously infer harassing intentions. Such cultural differences do not necessarily excuse behavior that is unwanted or clearly inappropriate in the workplace, but they may shed a different light on how to approach the perpetrator and correct the problem.

Avoid legal conclusions. Don’t focus your investigation on whether an employee committed “sexual harassment” or violated some other law; instead, determine whether or not the employee violated the company’s policies or values. Framing your conclusions in legal terms can only make matters worse. Avoid it at all costs.

If, for example, you find that “harassment” occurred, you may increase the anger or hostility of the accused and reinforce his feeling that he is the victim. Moreover, if litigation ensues, you may have eliminated your attorney’s ability to argue successfully that the facts do not meet the legal threshold necessary to proceed to trial. At a minimum, you probably have driven up the price of an early settlement.

In a recent case, an HR investigator found “racial and sexual harassment in violation of Title VII.” The investigator’s report was leaked to a former employee. The results: A claim against the employer, a lost opportunity for summary judgment and an eventual settlement price at least twice what it otherwise would have been, according to the attorney who represented the employer.

Another drawback of using a legal definition of harassment is that it may lead you to set an unnecessarily high standard for the information you gather, leading you to determine incorrectly that the evidence is inconclusive and thus take no corrective action. For example, let’s say you conclude that “Bill” made sexual comments to “Sally” although you question how truly offended Sally was in light of some of her own behavior. You could find that Bill “sexually harassed” Sally or that the investigation is inconclusive because you can’t determine whether Sally felt harassed. Neither conclusion would be appropriate. Instead your conclusion should be that Bill violated company policy and standards regarding acceptable workplace behavior.

Taking Action

If you determine that a company policy has been violated, you will need to consider corrective action. This may include discipline for the accused, taking into account the following factors:

• The severity of the behavior.
• Its effect on the complainant.
• The accused’s past conduct.
• The nature of discipline meted out in similar situations.

“Top-notch HR professionals avoid jeopardizing a well-conducted investigation by taking the time to determine and document what types of disciplinary action have been taken against similar employees in comparable situations before selecting the discipline to be issued at the conclusion of a particular investigation,” notes attorney Edwin A. Keller Jr. of the law firm of Kamer Zucker & Abbott in Las Vegas. “By doing so, the HR professional protects the company from allegations of unlawful disparate treatment by the accused.”

Corrective measures short of termination may include individual training sessions for the accused, group training, counseling, referrals to an employee assistance program or reassignment. (If a potential reassignment involves the complainant, make sure this step is entirely voluntary and confirm your understanding in writing.)

If your investigation results in a finding that the complaint is unfounded, disciplining the complainant is rarely appropriate. Consider doing so only in egregious cases of dishonesty, and, even then, get advice from employment counsel before acting. State and federal antiretaliation laws typically protect employees from punishment even when their complaints are unsubstantiated. In most instances, it is better to communicate strongly and unequivocally that the complaint is false. Even without disciplinary action, this message carries quite a wallop.

Creating a Paper Trail

Be sure to prepare a written report of your findings. In doing so, bear in mind that it may show up in court someday. In difficult situations, you may want to run a draft report past employment counsel for an assessment as to how a court might view it. The report should contain the following elements:

• A summary of the complainant’s allegations and the accused’s responses.
• A description or copies of the documents and materials you reviewed and witnesses interviewed.
• A summary of the key information obtained.
• Your credibility assessments and the bases for them.
• Your findings as to what more likely than not occurred—applying the “preponderance” standard discussed earlier.
• Your corrective action plan.
• Data that similarly situated employees were disciplined similarly (if disciplinary action is to be taken).

Communicate Carefully

Once you’ve made your findings and completed your report, shift your focus to communicating the results of the investigation in a manner that achieves two objectives: getting the workplace back to normal and keeping the lawyers away. The following should help:

Inform the complainant. Tell the complainant the results of the investigation and corrective action plan. If your findings substantiate her complaint, attempt to secure her acceptance of the action plan. If she expresses doubts or reservations, explain that you will be monitoring the situation and that if your solution does not work as envisioned, you will replace it with another one.

If your findings do not substantiate the complaint, focus the discussion on the path forward: the company’s commitment to a respectful, harassment- and retaliation-free environment and your willingness to address future issues promptly and resolutely. Emphasize that even if you can’t agree on the past, you can agree on what will be acceptable moving forward. As Winston Churchill said, “If we quarrel with the past, we may lose the future.”

Inform the accused. If your findings sustain the complaint, you will need to communicate the results of the investigation and the corrective action and discipline imposed. Although sharing details of the investigation is generally not advisable, you should briefly summarize your findings and why you reached the conclusions you did. Decline any invitation to debate with a reminder that your findings don’t represent your judgment of the individual, only your judgment of what sort of workplace behavior is or is not acceptable. The Churchillian point about focusing on the future and not the past bears repeating here.

If your investigation does not sustain the complaint, you probably need to do more than merely communicate that fact. Caution the accused against any form of retaliation, and, if you believe that the accused may have engaged in inappropriate conduct but the investigation did not reveal enough evidence to support such a finding, advise the accused that the complainant’s alleged facts, if true, would have violated company policy. Confirm his agreement that such conduct does not belong in the workplace and that he will not engage in anything like it in the future.

If, in the rare case you find that the complaint was completely without foundation—the alleged behavior did not occur, or was not inappropriate by any reasonable standard—it would be appropriate to tell that to the accused, without elaboration. You still must reinforce, however, that you will not tolerate any negative behavior toward the complainant, and you should counsel the accused not to seek an apology from the complainant.

Inform others. Generally, with respect to other employees involved in the investigation, the less said, the better. However, you may need to communicate some information regarding the results of the investigation to avoid negative speculation. The rule of thumb is to communicate the minimum necessary to avoid potentially harmful speculation. HR professionals always must be on guard for possible defamation or invasion of privacy claims brought by complainants or accused employees when embarrassing or hotly contested allegations are revealed to persons who have no business reason to know.

Reiterate the need for employee cooperation in maintaining discretion and ensuring that no one experiences retaliation. However, be aware that overly broad confidentiality rules can be deemed to unlawfully restrict both union and non-union employees’ rights to discuss terms and conditions of employment.

Document communications.

It is generally advisable to follow up oral communications with the complainant and accused with memos to each summarizing the important points discussed. The memos should conclude by stating that if anything in the memo inaccurately summarizes the discussion or leaves out any important points, the recipient should let you know immediately. In the case of a finding sustaining the complaint, the memo to the accused should require his signature—preferably in connection with a written commitment of expected future behavior.

Reintegrate. Whether you found for the complainant or the accused, devote attention to the “reintegration” process. Investigating one employee’s complaint about another is a delicate matter. Regardless of whether or not you found misconduct, it is unrealistic to expect the key players to go back to work harmoniously in the same environment with only a pat on the back or a kick in the pants. Your role includes helping the parties avoid future offensive behavior and counseling them toward putting the matter behind them constructively.

Steps might include having the accused apologize. However, you must take care to orchestrate the apology to avoid having it backfire. In one case, the apology consisted of the following: “I’m sorry if I offended you, but I’m surprised you were truly offended given the filth I’ve heard come out of your mouth!”

If the complainant and accused have “partisans”—co-workers who have taken sides during the investigation—reintegration should include explaining the necessity for everyone to put the matter behind them and move forward constructively. Ask for their cooperation as well as that of the complainant and accused in getting this message across. Again, the focus should be on the future, not continued quarrels over the past.

Follow-up. After the matter is resolved, mark your calendar to follow up with the employees and their supervisors to make sure that there has been no further offensive conduct, no one has experienced any form of retaliation and the reintegration process was successful.

Avoid the experience of one HR director who conducted a harassment investigation at a remote office. She disciplined the accused, had him sign a written commitment to avoid future offensive behavior and got agreement from the complainant that her corrective action plan was appropriate.

After the HR director returned home, the complainant and accused went back to work. The latter, thinking the former might need “a little space” for a few days, avoided her. The complainant interpreted this as hostility and responded in kind. The rift grew until a trivial issue set off a shouting match. The complainant stormed out of the office never to return. She brought claims of harassment, retaliation and constructive discharge. The HR director had no idea that trouble had been brewing.

Conclusion

This two-part series cannot provide a precise blueprint for every internal investigation under all circumstances. Nevertheless, it should help orient you in the basic do’s and don’ts of investigations and provide some useful tools in dealing with the challenges and complications that frequently arise.

Whether your style is more akin to Lieutenant Colombo or Inspector Clouseau, get to the bottom of it—then help everyone climb out!

Editor’s note:This article should not be construed as legal advice or as pertaining to specific factual situations.

Jathan W. Janove is a principal of Janove Baar Associates LC, a Salt Lake City-based employment law firm, and a member of the Worklaw Network, the Management Labor and Employment Roundtable and the National Arbitration Forum. He defends employers in litigation and helps prevent workplace claims through training, consulting and development of HR policies. His book—Managing to Stay Out of Court: How to Avoid the 8 Deadly Sins of Mismanagement—published by SHRM and Berrett-Koehler, will be out in late fall 2004.