Allegations of harassment can impact a company's finances - if a claim goes to trial - and its reputation, something which it has spent years building and maintaining and which transcends monetary value. In order to control and cope with allegations of harassment, the legal apparatus of a company must be focused and prepared when a complaint occurs, in order to guide HR representatives through the process of investigating, responding to, and finally resolving complaints.
Establishing The Process
There should be a step-by-step process for addressing employee complaints, one that meets different goals at each juncture in order to have secure footing for the next step. Following such a process can prevent a volatile and emotional situation, one in which the lives of both the accuser and the accused are at stake, from getting out of hand.
In order to effectively advise an HR department regarding managing harassment claims, legal counsel must begin training HR personnel regarding conducting harassment investigations before any complaints occur. An HR department should be prepared to promptly respond to complaints and recognize when it is necessary to seek the advice of corporate counsel.
Employees should be trained regarding the method for filing complaints and understand what channels are acceptable for doing so. There should be several levels of management available for employee complaints.
When A Complaint Is Filed
Once the company establishes the proper channels for receiving and responding to complaints, employees must be informed about their rights and responsibilities regarding harassment. That includes instruction on the proper way to file a complaint within the organization.
An employee handbook is an excellent way to inform employees about their rights and responsibilities regarding harassment and to explain to them what procedures can be undertaken to begin the investigation process. Employees should sign acknowledgment forms for receipt of the policy prohibiting harassment, to refute any allegations that they never received the policy during future litigation.
Employers must take complaints seriously but should not assume that the allegations are true or false. An employer's response should include the following components:
Inform the claimant that an investigation will be conducted, will begin promptly, and will be completed in a timely fashion.
Thank the claimant for conveying concerns, and state that the company does not tolerate harassment or discrimination.
Explain that the company needs to gather information, and that no determinations can be made until all information is gathered.
Do not promise confidentiality. Instead, state that all information provided must be investigated, and that it will be kept confidential to the extent possible.
Once an investigation begins, it should be kept confidential to the extent possible. Because interviews with others are necessary, absolute confidentiality cannot be promised.
However, steps can be taken to protect employees in order to keep them from feeling uncomfortable at work. This is especially important to stabilize a typically volatile situation, in which claimants might be tempted to seek legal counsel or other recourse if the company's response is not prompt and remedial in nature.
HR personnel should explore whether the claimant feels comfortable at work or whether steps need to be taken to distance the alleged perpetrator while the investigation is ongoing. They should communicate to the claimant that the company does not retaliate against individuals who express concerns, and request that any future problems be reported immediately.
Investigating A Complaint
During the investigation, all interviews should be conducted in a confidential setting. Keep good documentation of the information provided. Try to have a management member present as a witness during interviews. The witness should be an objective observer, somebody with whom both parties feel comfortable, and above all, somebody who is not an alleged perpetrator. If possible, tell claimants in advance who the witness will be, and make sure they are comfortable with the person.
Approach interviews (whether with a claimant, a witness, or the alleged perpetrator) with an open mind and conduct the interview objectively. Inform everyone interviewed that retaliation for participation in an investigation is not tolerated, so they will feel comfortable answering questions honestly.
Avoid characterizing facts gathered or making conclusions before completing the investigation. The investigation should proceed logically and discreetly, which can help avoid involvement by employees or management not part of the process. It can also help minimize the possibility of external publicity about the problem.
Ask the claimant for all information that supports the allegation. That includes whether there were any witnesses, and whether the claimant has any supporting documentation. Investigate all allegations, talk with all witnesses, and ask the alleged perpetrator for his or her side of the story.
After An Investigation
Keep the complainant informed that the investigation is ongoing in order to prevent any perception that the company is not responding to the complaint. Constant communication demonstrates that the complaint is being taken seriously, and that there is no double standard for those in positions of power.
After your investigation is concluded, take whatever action is appropriate and warranted against the alleged perpetrator and document the action taken. The company's response must be prompt. From a litigation perspective, it is especially important that the company's response is designed to prevent further inappropriate conduct toward the claimant or others.
HR Aware And Responsive
The necessary action that a company takes will depend on the circumstances. For example, an inconclusive investigation may result in a discussion with the alleged perpetrator to remind him or her of the company's policy prohibiting harassment. Such a meeting should be carefully documented for the individual's personnel file and the company's investigation file.
If the company determines that the complaint has merit, disciplinary action up to and including termination of the alleged perpetrator may be appropriate. Employment law counsel can assist HR personnel to determine the correct course of action.
The company should report back to the complainant that the matter has been investigated and the company has taken appropriate action. However, counsel should caution the HR personnel that it may not be appropriate, depending on the circumstances, to communicate to the complainant the specific disciplinary action taken in order to minimize the potential for litigation from the alleged perpetrator.
Training an HR department in this step-by-step process of communication, investigation and remedial action will make department personnel more confident, proactive and responsive in handling complaints. The same guidelines apply to investigations of complaints of discrimination. A quick and competent response to harassment and discrimination complaints will send a message to employees that harassment and discrimination are not tolerated while minimizing the likelihood of litigation.
Stephanie Perin Slobin of Bracewell & Giuliani LLP provides legal counsel and representation to employers before administrative agencies and in federal and state court in litigation involving Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Sarbanes-Oxley Act, the Fair Labor Standards Act, the Family and Medical Leave Act (FMLA), the Texas Commission on Human Rights Act, the Texas Payday Act and the Texas Workers' Compensation Act, as well as state claims of breach of contract, tortuous interference, slander and libel. She regularly advises clients on obligations pertaining to, and management of, e-discovery in litigation.
Ms. Slobin advises management regarding harassment, discrimination and whistle-blower investigations, leaves of absence (including medical and military leave), reductions-in-force, and a variety of other issues related to the hiring, retention and firing of employees. She also works with management to draft employment policies, employee handbooks, arbitration programs, confidentiality and non-competition agreements, and employment and independent contractor agreements. She can be reached at 713.221.1521.
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