VANNOY:
How to investigate employee complaints. Hi, I’m Mike Vannoy with Asure and my guest today to unpack this topic is Brian Schenker. If you’re a regular attendee of the show, Brian. Brian is a New York based attorney with Jackson Lewis. His practice focuses on representing employers on a wide range of workplace matters, as well as preventative advice and counseling. Brian has extensive experience defending class and collective action lawsuits under federal and state wage and hour laws. He has successfully defended wage hour audits conducted by the US and New York State Departments of Labor. Brian regularly handles cases before courts and administrative agencies involving claims of discrimination, sexual harassment, and retaliation. Brian, welcome back to the show.
SHENKER:
Happy to be here, Mike.
VANNOY:
Okay, so pretty straightforward topic, but I think maybe a really important one because dare I say, if you haven’t had to do this yet as an employer, it’s not a matter of if, but probably when, maybe not in all cases, but for most businesses, there’s going to be a day when an employee comes to you with a complaint. It doesn’t necessarily have to be some really hardcore criminal action that happened where of course you would investigate, and of course you would call the police and act proportionately. I think what the message we want to get across here today is how should employers be thinking about what may feel like edge cases, right? It’s like, oh, do I have an employee who’s just kind of a complainer and that’s nothing, I don’t have to do anything with that. Or, oh, you know what? I know what the other person meant. They were legitimately offended or bothered by this, but I know the other person too, and they’ve been here a long time. They’re a good human being. They didn’t mean anything by it. I think these are the areas that employers really get themselves in trouble when it comes to handling complaints. Anything you’d want to say kind of at the top here before we jump in?
SHENKER:
Yeah, I think investigations into employee complaints are so important, Mike. I think that, I guess the best way I could phrase it is that poorly, poorly conducted investigations will absolutely impact a company’s potential liability and exposure. Not only, not only the legal and litigation issues, but companies that fail to investigate employee complaints, it leads to morale problems,
Chilling effect on employees going to management. And so it’s really important that companies investigate these complaints. It leads to informed decisions. It encourages an open workplace where employees are encouraged and feel comfortable bringing up their issues to management, and it deters improper behavior. And we’re always discussing that as many issues as an employer can resolve in-house internally rather than externally, the better. So here, what better way to deal with an issue upfront, investigate it rather than have the employee go to an outside attorney or agency and file a claim. So I think just as a starter, that’s the importance of what we’re talking about today, how a company can avoid exposure, set the right culture, and really this is a real way to limit potential liability for all size companies.
VANNOY:
So Brian, what kind of cases do you think an employer should be investigating? So do you have some ground rules or some rails that we can put around this thing for when we shouldn’t perform, Gary? I call it a formal investigation.
SHENKER:
Yeah, absolutely. So before it was a misnomer. I’m calling these employee complaints, but the complaint doesn’t always have to come from an employee. It could come from a third party, it could come from a supervisor who overhears two employees talking about an issue. It can come from another employee who complains on behalf of a different employee. So there are all sorts of triggering events for investigations. And what a company should keep in mind is that there are no magic words. We all think of discrimination, harassment, retaliation, hostile work environment. Of course, if someone comes with those types of complaints and uses those words, it’s easily recognizable as a complaint that should be investigated. But there are much more vaguer, ambiguous types of communications that are more often the case than a clear complaint. So when an employee says they were uncomfortable or something was creepy or weird, or it felt off or it didn’t seem right, those are things that should certainly prompt an investigation. And so I think that really, whenever a violation of company policy is in play, there should be consideration for an investigation. Like you said, Mike, there might be very small issues that certainly in the employer’s discretion don’t rise to the level of something we’re going to investigate, but that should be considered. So there’s also issues of off the record complaints, right?
VANNOY:
Is there such a thing, Brian, as off the record?
SHENKER:
No. I should have used quotation marks for that.
VANNOY:
Yeah, right.
SHENKER:
Absolutely a great point, right? There’s no such thing as an off the record complaint
VANNOY:
For anybody watching. Just think about it. One of your employees comes to you, they want to have an off the record conversation. You get it. And that might mean you honor the request to be off the record that you’re not going to tell the other employees. So you don’t have some tattletale, and you may be wise and judicious not to do that, but just picture yourself in a deposition and not perjuring yourself and risking going to jail yourself. Because when the judge asks, or the opposing counsel asks, there’s no such thing as off the record. Right?
SHENKER:
Exactly. So if the company knows of the complaint, it knows of it. It cannot pretend to have not heard a complaint, so right. An employee who wants to come and complain about something, you should not promise confidentiality or that nothing will be done because again, that’s very much could go against the company’s legal obligations to investigate. I think the main thought here, company employers should think discretion, not confidentiality. Someone comes,
VANNOY:
Well said,
SHENKER:
We’ll keep this on a need to know basis, but I cannot promise you it’ll be kept confidential. Right? That’s not a promise that we can necessarily make in this.
VANNOY:
Brian, in your practice, what are some of the use cases that you see folks get in trouble here? Because again, I always, on the show, I try to put myselves in the shoes of the employer. I don’t think employers are out there trying to squeeze the little man and they don’t care about their employees. For the most part, all employees that genuinely care about their employees, they want to create a great work environment, great culture. They probably even genuinely like them, even when they’re not satisfied with their performance. But sometimes an employee’s going to complain, and sometimes you, as the business owner or a manager, you might think, oh, this is actually a real deal. I got to do something about this. Sometimes not. Sometimes it happens all the time that employees will come to you with things that in your viewpoint, they’re frivolous and maybe they need to toughen up, and maybe they do, maybe they don’t. But where do you see folks get in trouble here?
SHENKER:
I think the idea is that as the employer, you shouldn’t prejudge the complaint. And part of it part, this whole issue isn’t necessarily getting it right. I mean, that is what we hope for in an investigation, that we get it right, but that’s not necessarily the end game here. Part of it is going through the process to show that your company takes these things seriously. So even if you think it’s frivolous, having the investigation proceed and then having the documentation to show, Hey, we looked into it. There was no corroboration, nothing to do, alright, that’s better than just saying, Hey, we’re not investigating it. We think it’s just not credible at all. Right? We want to do that investigation to show it was taken seriously.
VANNOY:
Yeah.
Okay. So let’s just maybe talk about some of the laws that are involved. And I know the business owners here listening, they’re not going to be able to memorize all these, but there’s, boy, there’s quite a framework of laws that all kind of stack on top of each other here that your ears should be perking up when you hear certain things, certain types of complaints. This isn’t, hey, so-and-so is rude. They don’t share food to break room. There’s not a law in the books to force that. That might just be good or bad manners. But there are laws on the books that you should be really attuned to some of these cases. Can you rattle off some that we should be thinking about?
SHENKER:
Yeah, absolutely. So I mean, look, from my own experience, I can tell you the various areas that I most often see employee complaints leading to investigations, obviously hostile and work environment discrimination that could come up under Title vii, the A-D-A-D-E-A, and those ones we’re looking at how someone could have been treated differently in the workplace than others.
VANNOY:
And real quick, ADEA for folks.
SHENKER:
So we’ve got the age, age and discrimination employment, and then ADA is disability. So we’re covering various protected categories under the federal law. Of course, your states may have additional protected categories, but a lot of the complaints an employer will see that need to get investigated come under these civil rights laws where someone is complaining that they’re in a protected category and they’re being treated inappropriately by someone else, right? That’s
VANNOY:
A whole, so AD age discrimination in employment act. What might a complaint look like there? And probably there’s two ends of a spectrum when it comes to age, probably, right?
SHENKER:
Yeah, absolutely. Perhaps you have an older individual performing a job, they’ve been at the company for years, and their manager starts getting on them for maybe not being so technologically savvy and making various comments that kind of seem age-related, maybe When is it time to retire? Things like that. And look, that individual might then go to HR and complain that these things were said, I feel like I’m being forced out and right. Look, there’s an opportunity to investigate the issue, and if it doesn’t get investigated, who knows what happens? Maybe that individual quits claims he was constructively discharged and files a hostile work environment discrimination claim that could have
VANNOY:
Otherwise. I know of an employer who had that exact scenario, it was a long-term sales rep and with the organization for many, many, many, many years, and they kept asking this guy, so when are you going to retire? When are you going to retire? When are you going to retire? It was clear that they wanted him out. And short story is it cost this company a lot of money to settle this guy? He had a couple of decades worth of service here.
SHENKER:
And look, I think that companies should also be aware of that, and I think these discrimination type complaints are what we typically think of when we think of employee complaints and investigations. But it can run the gamut. There could be, we could be at a restaurant and you have an employee this recent, an employee complaining about the tip pool and the distribution of tips, and they make complaint, they want to see the records, they think they’ve been gypped out of some tips. That’s something that potentially gets investigated. If there is a issue with the employee’s tips, you want to look into that, that’s got company policy and legal implications. And so again, it doesn’t even need to be discrimination. It could just be a complaint by an employee about how they’re being treated. Doesn’t bring up any protected categories, but again, under the company’s policies, and we’ll get into that, a company should have updated policies.
Is that against company policy to perhaps this individual yelling at others, bullying other employees? Not illegal, not unlawful under Title vii, but it’s probably violative of the company’s workplace policy and professionalism. And so even if it doesn’t necessarily implicate a law, there are things that should be investigated, right? Because I think one of the first things a companies should do at the outset of an investigation before it’s done, anything you’ve identified that there’s a complaint, however, that came about by an employee in writing or verbally, however it came in. But one of the first things that the company should do is look at, alright, what policies, what company policies does this implicate? So obviously we’re starting, there are company policies, and that’s really a reminder for companies that, again, you should have a handbook. You should have written policies governing here, right? EEO matters, wage and hour matters, but a whole host of things. If you don’t have those policies, then you’re behind the eight ball to start out, right? Because,
VANNOY:
Yeah, I’m going to cite. So a lot of people know that we conducted a survey over 2000 small businesses ask all kinds of HR best practice questions and correlated that to whether those companies were growing or shrinking last year, 80% of fast growing companies have an employee handbook that was updated in the last 12 months compared to only 40%. Half 40% of companies that didn’t grow last year either don’t have an employee handbook or it wasn’t updated within the last 12 months. So it’s just simply having this, this isn’t just a finger wag you’re getting from us today probably around how to handle complaints and get policies written down. The companies who know better, there’s a direct correlation to actual revenue growth here,
SHENKER:
Right? Yeah. And look, those are staggering statistics you provided, and I think that probably tells us those faster growing companies are looking at HR and those ones that aren’t growing are just relying on what they’ve already done. But that means you’re not updating your policies. Maybe they’re not tailored to what you’re doing now. And that can be problematic because when your company receives a complaint, you’re not looking at the complaint in a vacuum. You’re looking on how it applies to your company, your company. It probably implicates anti-retaliation policies, maybe confidentiality policies for union companies, a collective bargaining agreement for some employees. Companies have employment agreements. So again, at the outset, we’re looking at all those things, seeing what this implicates, because all of that is going to end up having a place in the investigation.
VANNOY:
So let’s get into it.
I think we beat the drum hard, take complaints serious. We’ve kind of talked about some of the laws that your ears should perk up around different things like age, obviously, safety, anything safety related, disability, anything, title vii. And if folks don’t know what that is, that’s the Civil Rights Act. So discrimination based on age, race, religion, gender, et cetera. So investigate now, something happened, a complaint or an employee comes to us. I feel uncomfortable with this situation. I think we’ve established you got to have an employee handbook. You have to, not by law, but you’re crazy if you don’t. This is the place you document your policies and procedures. What do you do now?
SHENKER:
So, so the first things first, you have that triggering event. Now you need to determine the scope of the investigation, and that really pretty simple. You’re looking at what the complaint is and you’re thinking about, okay, who’s going to be part of this investigation? Who might be involved? When, where, and what evidence? So you start thinking about these things before you investigate, right? Because a wage an hour, a tip pool complaint, that’s a completely different scope than a systemic discrimination complaint. So we look at the complaint, we see what the scope is going to be. Then I think it’s something that companies should really look into is identifying and containing any interim risks.
So what does this mean, right? In the instance of a harasser, right? An alleged harasser. This means maybe we need to separate them, put them on different shifts, get the accused away from the accuser. So that should be considered. Oftentimes we want to move the accused and not the accuser, so it doesn’t appear retaliatory. Sometimes an attorney demand letter might start an investigation. So we need to look at that, right? That might require litigation holds to be put in place. So we preserve evidence. The next step is really then determining who’s going to investigate. Generally, this can be done by an objective HR individual. That’s often someone who knows the company’s policies already. So they have familiarity, which is helpful.
VANNOY:
Brian, give an example. In a smaller firm, if I own a construction company, a landscaping firm, a smaller architectural firm, I’ve got 15 employees, I’ve got an office manager, and there is no HR department who does the investigation there,
SHENKER:
Then the question is for smaller companies, whether there’s someone internally in the company who can be objective and investigate, which sometimes can’t happen in a small company, the one or two or three individuals at the top who might be qualified to investigate, they might be the subject of the complaint or close enough to the complaint that they shouldn’t. So in those cases where there simply is not a non-conflicted person at the company to do the investigation, companies should really consider going outside to an external source, having an HR consultant like ashore, softwares consultants, do an investigation or have an attorney. But certainly, yeah, there can be considerations for that when it’s going to be someone outside the company. And look, even for companies that have hr, there are sometimes reasons to have someone outside. I’ve had numerous matters where, look, once an employee puts out complaints, those complaints kind of snowball, and now their original complaint was against their manager. But somewhere in there they’re saying HR is not competent. So now can we really have someone from HR conduct a non-conflicted investigation that could be difficult.
VANNOY:
So I love the idea of third parties doing the investigation. And this isn’t always realistic. I mean, minor infractions, yes, you should investigate, you should document, you should do all the best practices we’re going to continue to talk about here. But if it’s a serious allegation, hiring someone from the outside does two really important things. Number one, you’re telling that employee and all other employees how serious you take this, that you’re willing to spend a little bit of money to get an unbiased opinion because you’re signaling, Hey, I think I’m too close to this. I’ll interject my own biases, and I want somebody, an outsider’s viewpoint that sends it a really good signal to all of your employees that you’re going to take things serious and that you’re going to be fair-minded about it. And then number two, if it’s a big deal, I don’t know what the legal term, but self-serving testimony from the owner trying to cover their own, you know what isn’t nearly as strong as if it’s somebody who’s a SHRM certified professional or an attorney or just a respected person in the community who came in as an independent third party to do the investigation, right?
SHENKER:
No, and you’re right.
VANNOY:
Whenever few hundred dollars, you might spend maybe more than that, but it doesn’t have to be, that could pay for itself a hundred fold,
SHENKER:
Absolutely. In those cases of very serious allegations, that might just be the company’s decision. Let’s go with someone external that’s see what a third party who has no skin in the game says about this. We want to get this right, and we don’t want any allegations of bias,
VANNOY:
Right?
SHENKER:
Okay,
VANNOY:
So you decide. So you’re going to take action. So you got your policies in place, you’re taking action, you decide who it’s going to be, somebody internal, somebody external, kind of depends on the severity in nature of the claim. If you have a senior person and they’re the subject of the complaint, you obviously don’t want that person. So you make the appropriate decision what comes next.
SHENKER:
So the next step, and I think this is a real important part, and it’s something that I do when I’m conducting investigations, is making an investigation plan. The best thing you can do for yourself is, and look, even myself who I’ve done many investigations, I still like to do this every time so that I have it thought out and I know what I’m going to be doing. So my investigation plan includes a number of things. What are the relevant documents to review? So I need to get ahold of all those relevant documents. Obviously, if there’s a written complaint you want that the policies, handbook, procedures we discussed before, you want to have those, but then, right? What else is there? Oftentimes in workplace investigations there emails or text messages, maybe audio recordings or photos, personnel files of the employees is important to have. So you want to gather the world of documents and identify what those are. You’ll want to think about who the witnesses are. Obviously you’re interviewing the complainant and the accused, but there are other witnesses. So are there managers and supervisors? Is there someone with some special expertise in some field that might be helpful to interview related to the complaint?
VANNOY:
Brian, if I’m a business owner listening to this, I could see how this could feel a little cringey. So if I have an employee who is accusing someone else of sending sexually explicit material in email, seems pretty black and white, you need to forgo over the emails. That’s part of the investigation. That doesn’t seem, that seems quite clear. But if an employee is saying, Hey, every time this person looks at me, they look at their computer, they start to snicker. I think that they’re emailing each other about me. I, and I don’t know if that’s a good use case or not, but I’m sure there are some cases where an owner might be thinking, okay, going to, how far do I dare go with this in my investigation here before now I’m infringing on rights of other people. I’m destroying trust and culture. I mean, I could see where people would feel uncomfortable. How far to go really quickly in some of these investigations? What would be your guidance there?
SHENKER:
Yeah, I mean, look, those can be tough calls. I think that look and when we’ll get to it, certainly witness interviews can be awkward at times or uncomfortable. And look, I think as part of any investigation, there can be uncomfortable aspects for an employer. You want everyone to get along and work, and now you have an issue and you need to look into it. And there are going to be some hard questions asked. Cooperation sometimes becomes an issue. If you were asking people for their emails, they could voluntarily provide them, or the company can say, Hey, I’m going to go to it and just have them pull your company emails, right? We’re not talking about going into any personal information, but anything that’s done on the company’s network systems, that’s likely something they can pull up and use as part of an investigation. So if you have an employee who isn’t giving you some email in your situation, we believe there are emails around that time or messages and they’re saying, no, none or we’re not showing you, it can assist you with that. So you don’t need to just rely on the good faith of the witnesses to give you the documents. You can utilize your other sources in obtaining and reviewing those data or documents.
VANNOY:
So I’ve got my policies, I’ve decided to take action. I’ve decided who’s going to do the investigation, come up with an investigation plan. I love that. Now we start gathering evidence. You’ve accumulated enough, you’ve hit some tipping point where you call it, okay, I think I’ve got this as much as I’m going to get for material information. I guess what comes next? Is it judge and jury time? Is it formal report time? How do you communicate and bring this thing to a close?
SHENKER:
Yeah, now it’s the fun part. Now we’re going to interview the witnesses. That is, look, other than pulling the documents and all that, this is where a lot of the facts and information will come from. So this is another really important component of the investigation. And again, something where a little bit of preparation can go a long way. So again, before I’m conducting witness interviews, and again, this is something I do for myself and suggest that employers do it as well. Draft outlines for the witness interviews. You don’t want to be in there winging it and leaving it to chance that you cover what you intend to cover. Identify the documents you want to show each witness, right? This is almost like a deposition where you’re going to ask some questions, you can present them with evidence, and you’re going to then ask them, follow-up questions about those documents. Now, since the pandemic, another question is, where’s the interview location? Is this going to be in person? Is it going to be on the phone or is it going to be virtual? A video call? I’m still a very big proponent of conducting investigation interviews in person. I think that in addition to conveying the formality of the situation, there are lots of cues we can pick up on from a witness that can go towards credibility determinations. So
I think in person would be preferred. Virtual might be a second best. And I’m really not a fan of telephone because I think a lot is lost in not being able to see the witness.
So once you’ve identified who you’re going to interview, now, the question is in what order? There’s no magic formula. There’s no necessarily right or wrong way. I do think that interviewing the complainant first, so that your initial interview, if you’ve established the scope of the investigation, if there is anything else that might not have been included in the original complaint, now you’ve gotten that. Typically I go then to the other witnesses, coworkers, supervisors, et cetera. And then last I go to the accused, because you want to have all the information, you want to be able to present everything to them so you can get the responses from the accused as to the allegations. So now you’ve set the order. Now you’ve decided whether you’re doing it in person or not. And then, alright, who’s going to be at the interview? If you’re a union shop, obviously there’s some additional considerations here. I’m going to, we’ll have their rules.
VANNOY:
They’re going to have their own rules and policy to handle it. Yeah,
SHENKER:
Exactly. And there could be a union rep needed, but I’m presuming we’re dealing with a non-union shop. So who do we want present? Typically? It’s fine that it can just be the investigator and the witness. Sometimes you may want to have a note taker there, not necessarily to corroborate anything, just because in interviewing someone, it can be difficult to proceed with the interview effectively while also taking detailed notes. So if you feel that’s necessary, then have someone come in and take notes. That said, highly, highly, highly recommend not recording any witness interviews. Handwritten or typed out notes will be just fine. And then look,
VANNOY:
Is that Brian? I could see somebody thinking it’d be the opposite.
SHENKER:
So I mean, look, I think,
VANNOY:
Did you ever watch an episode of Suits that lawyers, you guys record all these things. Why don’t you want to record this?
SHENKER:
So I think number one, look, depending on various state laws, you could be in a two party consent state where you need to obtain the consent of this individual, of the witness. They might withhold that consent. That could be one issue. But I think also, look, once we start recording, I think also in terms of getting the best, we’ll call it testimony from each of these witnesses, I think that often recording it can have the opposite intended effect. It can be chilling
Because the way that I’d like to set up interviews, I kind of split it. I imagine it in three phases, and that first phase is the most important one, I think, where we’re engaging in small talk and questions that don’t necessarily even relate to the allegations, but just things to make the witness comfortable, create some connection between us so they feel comfortable being truthful to me, and that I feel that I can then ask them some important and potentially sensitive questions without having them react badly. So I think that first stage you want to build a rapport. And so also, if you’re recording everything, I think it’s tough to build that rapport. That’s good
VANNOY:
Advice. I agree with all that. Yeah.
SHENKER:
Yeah. What
VANNOY:
Comes next,
SHENKER:
Right? So now we’re commencing the interview, right? So one of the things that we start with almost the complainant witnesses, anyone, is that no retaliation, right? We cannot mention the company’s non-retaliation policy enough times oftentimes, look, I even go so far sometimes as to have a statement of non-retaliation that I have each witness sign that they’ve acknowledged that they’ve been provided the company’s policy. They understand there will be no retaliation and they’re instructed to report anything immediately. So I think that also goes hand in hand with developing that rapport with a witness, letting them understand that what they are doing is something the company really wants from them. We want to get this information. We appreciate you discussing with us. And again, there will not be retaliation for being part of this investigation. Then going from there, look, we want to get facts. That is the goal from any interview.
We don’t want rumor, we don’t want opinion, we don’t want guesswork. We want to limit this. We want to get facts. So again, who, what, when, where, and if there’s who are other witnesses? Another W, other witnesses. But certainly there’s some things that the company should be limiting from. The investigators should be limiting themselves. So the investigators shouldn’t be disclosing information it’s obtained from other witnesses. You start out the interview by giving enough information to identify what’s being investigated. But then I don’t sit with an interviewee. I am not going to sit with a witness and say, I just interviewed Jane and she told me that No, we can ask those questions in a different way so as not to disclose what someone else has told us. I think that’s very important.
VANNOY:
Brian, help me out here. I’m going to come back at the end a little bit. A small company, you might not say it was John who told you this information about Jane, but everybody in the building knows. The only way you found that out is from John telling you how do you guide a business owner, a small business environment where you’re not going to keep this stuff secret because everybody just knows. In fact, you’re probably the last person to know all this stuff.
SHENKER:
Yeah. Well, and I think that just goes to the point we made earlier that you cannot promise confidentiality. That you might think, oh,
VANNOY:
Discretion, not confidentiality
SHENKER:
Straight. I can promise it in this circumstance, but you don’t know where the investigation’s going. Just like that. You might not even disclose who said something, but by process of elimination at a small company, employees can figure it out. But look, that’s also the importance of notifying everyone of non-retaliation policy and enforcing that and having management follow up and ensure that throughout and even after the investigation that there’s no retaliation because right, even the best intended investigation could leak information unfortunately, and let others know what other people have said. I mean, look, minimally, the accused will know who the accuser is, and we want to make sure there’s no retaliation there. But this can come up with other witnesses as well. And so I think that it’s very important and a couple other things. I think some of the things what not to do are more helpful than explaining what to do. So as I said, we’re not sharing what other witnesses have said. The investigator, sometimes in trying to make it more conversational, an investigator might start providing their opinion or conclusion on with witnesses and such, oh, this investigation I think is going here, but I just need you to give me your statement. No, we don’t do that. We don’t discuss our own opinions with any witnesses. Also, I might not have mentioned this, but witnesses should be interviewed individually, not in groups. And again, you cannot tell and employee to necessarily keep everything confidential about the interview, but you can certainly recommend encourage them not to discuss it with others. But you can’t necessarily mandate confidentiality.
VANNOY:
Ryan, what do you do if the employee just doesn’t want to talk? I mean, this is not a legal proceeding. You’re not a judge, you’re not an attorney. So they can’t say, I plead the fifth because that doesn’t apply here. But what if they just don’t want to talk?
SHENKER:
Yeah. So unfortunately a situation I’ve also run into many times. So I think first, again, we can go back to try to establish a rapport to the best you can. That’s why you do some small talk at the beginning. Get them comfortable. If that doesn’t get it going, look, then you communicate. There should be a company policy on this, that it’s the company’s policy that the employee is required to participate in internal investigations. If they still fail, don’t cooperate and won’t answer questions, then you can document that in your notes. You’re going to document, this is what was said, this is what they’ve said. And then look at that point. If you have a witness who fully is not cooperating, the investigators should then elevate this, and it should probably go up to, if there’s HR involved, hr, if not, we’re going to the top of the company potentially, potentially reaching out to an HR consultant outside the company.
But the question then is going to be, what do we do with this employee, right? Because your policy probably says you can discipline an individual for failing to cooperate in an investigation. That said, it might not be what the company wants to do. So you really should consider whether you want to discipline this employee or simply go on with the investigation without the benefit of that person’s testimony. Look, if it is the accused who’s refusing to cooperate, then the additional thing you’re going to explain to them is that, look, if you don’t answer our questions, all our information is going to come from the complainant and any other witnesses. So all we can go by is what we receive. And if we receive nothing from you, your side won’t necessarily be told, and that can impact the result of the investigation. I’ve found that it’s typically not the accused who’s refusing to cooperate. Normally, they’re the ones ready to get in there and deny the allegations, but that it’s potentially, I’ve seen it come up a number of times with witnesses who are friends with the accused. They want to be loyal to the accused. That’s often where I’ve had the situations where they’re refusing to be interviewed or answer many questions.
VANNOY:
Alright, so Brian, we’ve gathered the evidence, we’ve done the interviews, we understand the best practices, the do’s, the don’ts, and I think maybe now we’re at decision time, right? So how do we communicate this? Is this verbal? If it’s not a big deal, do we verbally communicate? Do we communicate to all parties, including witnesses? Is this a formal written thing that has to happen? What’s your guidance on sharing results, documenting all this?
SHENKER:
Yeah, great question. And I think there’s a lot to unpack there because typically the default is that we’re thinking there’s going to be a written report. There might be occasions when it’s just going to be a verbal report, but typically we want to have something in writing. So again, a couple tips for that before we go into those other issues. You identified, Mike, stick with the facts in this written report. Don’t draw legal conclusions. I often see companies writing things like the manager created a hostile work environment, or the employee harassed was harassed by the customer. Those are conclusory, right? Instead of saying the manager created a hostile environment, well, what actually did the manager do, right? So we, on
VANNOY:
Such and such date, the manager sent an email that said X, Y, Z, and that made the employee feel harassed on such and such date. This happened. Just state the facts, right?
SHENKER:
Right, exactly. And stick with the facts, right? You could say, Tanya denied sending inappropriate emails. You could say that, or you could say, Tanya said she never sent the inappropriate email.
VANNOY:
Okay, we’re back. First time ever on the show, Brian, you may have heard the fire alarm going off in the background. He tried to fight through it, but he was being directed that he had to leave. I think it’s just an alarm. So we’re pretty confident Brian is safe and sound. And we were nearing the end of our conversation. Let me just kind of try to wrap this up. So Brian’s guidance is that if you have any complaint, and again, this isn’t about, Hey, I don’t like so-and-so so-and-so has bad matters. This is anything that potentially violates any law around discrimination. It could be age, could be gender, could be religion, could be anything, disabilities, anything that could be a violation of any HR law. You simply have to take it serious, and there’s no such thing as an off the record conversation. You might honor that in your interpersonal relationship, but when it comes time to actually investigate, you have to investigate.
And when you do that, you’re signaling to your employees how serious you take the work environment and the culture of your company and how serious you take their word. If they come to you with a serious complaint, you might think that they’re wrong. You might think that they’re just being overly sensitive. If you blow it off, you don’t take it serious. You’re sending a very different signal to them. And if they’re aggrieved, there’s a good chance they’re going to go seek outside counsel. And it could seriously happen as casual as a month or three months later, they’re at a party and they’re talking to someone who’s an attorney and they explain that and everybody in the conversation is like, well, they couldn’t have done that. That’s illegal. And all of a sudden, somebody picks up the case at no charge and you find yourself an attorney in the EEOC knocking on your door and they’re going to do the investigation, not you, and you sure wish you would’ve done it yourself in the first place.
Some headlines here that we were going to talk about, I won’t unpack them. You can hop on Asure software.com, go to our resources section, and we talk about this in detail, but three cases where the business owners didn’t do what they needed to do for investigations. One was a tech business. They now owe $120,000 to settle an EEOC sex discrimination case because they didn’t do what they needed to in the investigation. Number two, $350,000 in back wages in damages for a supermarket’s FLSA violations. And EE ooc sue’s business for subjecting mechanics to verbal abuse. These are all instances where the employer, I’ll say it maybe just didn’t take the claim serious enough. And when you take it serious, you send a signal to your employees, and worst case scenario, you’re simply protecting yourselves $120,000 fine, a $350,000 fine. I mean, to most small businesses, these are existential threats. A lot of people aren’t going to come back from that kind of a hit. So take them serious, follow the best practices that Brian laid out.
I suspect one of the things I wanted to ask Brian, this might seem appropriate when you have the employee come to you and, Hey, somebody put their hands on me, or something happened that is so clearly black and white, yes, this is wrong. We need to do an actual investigation, possibly even bring in outsiders from the organization. I think everybody probably gets that stuff. And Brian’s best practices were great. My guidance for small business owners is where we get in trouble is the things that we don’t think are maybe all that big a deal, but our gut tells us, okay, something’s wrong here. You can’t blow those things off. You can’t sweep ’em under the rug. The very worst thing you do is you investigate and you decide, and you write down and communicate to the accuser and the accused that, Hey, this is what everybody told me and therefore I’m not going to do anything. But you’ve signaled to the accuser that you take them serious, that you cared enough to investigate, and you’ve sent a pretty clear signal to the accused. Maybe they did do what they were accused of and they got away with it, but you’re also telling them that you’re going to take this kind of stuff serious. So we’ll, welcome back Brian on another show, another week, and trust that he is well as we trust that you’re well. And we will see you next week. Thanks.
Speaker 1:
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