You receive an HR complaint from an employee. It could be someone unhappy with how
their manager has been speaking with them, or it could be a manager feeling like their direct
report is harassing them, or it could be an employee who brought up safety concerns in the workplace. You don’t have to look much further than any episode of The Office (either
country’s) to find plenty of examples.

What is the first step after the complaint comes in? You were paying attention during the management training, so you know what to do: you assign the complaint to an objective
investigator to look into it. You even remember what the training said about being careful not to do anything that could be considered retaliatory, so you make sure you don’t do anything like put the person who made the complaint on administrative leave or relocate the person who made the complaint to another seat. Whew! Issue handled, right?

Before answering that, let me ask you this: was your investigator paying attention during
management training? What? What do you mean, the investigator never took the training?

The fact is, many retaliation cases are the result of well-intentioned but poorly executed internal investigations. Leaving the official statutory definition for another day, unlawful retaliation essentially is anything—an action, an inaction, or a statement—performed by the employer or someone acting on the employer’s behalf that is sufficiently material to deter legally protected activity. “Sufficiently material” sounds pretty vague, doesn’t it? That’s intentional. The idea is that if someone feels like they need to do something to protect their rights, the law wants to ensure that they do not feel like they are being punished for it.

As I mentioned earlier, a common mistake is placing the employee who made the complaint on administrative leave during the investigation. While it may seem like a good idea to make sure the employee does not have to deal with whatever is going on in the workplace, think about what really is going on — it is taking an action against that employee because they made the complaint. Typically, that is an open-and-shut case of retaliation. But there are more subtle and insidious things that can be, and that courts have, considered to be retaliatory.

Internal investigations are sure to turn up any number of issues, only some of which have any bearing on the underlying complaint. Let’s imagine a scenario when an employee made a
complaint after being suspended, claiming it was discriminatory. During the investigation, the manager explains that he suspended the employee for poor performance and failure to follow a management directive.

What happens next is crucial. The investigator obviously needs to look for more information about the alleged insubordination and poor performance since those facts can spell the difference between discrimination and a legitimate personnel action. But it is how the investigator does so that makes all the difference. The term you may come across is “victim blaming,” which is when the person who raises the concerns ends up being the one who finds themself more closely scrutinized than the alleged harasser.

Unfortunately, there is no neat checklist of questions or safe and appropriate actions to take. Each investigation, and each situation is unique and needs to be considered in its own unique context. In our earlier example, is a harassment investigation the right vehicle for investigating an employee’s performance? If so, how closely are you supposed to look at the allegations of poor performance? If the complaining employee provides names of witnesses, do you need a statement from each one, or can you get a general sampling? How much information do you share with the person who was accused of harassment? And who has to make all these subtle judgment calls? That brings us back to where we began—the investigator.

Just who are you authorizing to conduct these sensitive and important investigations? Is it just a collateral duty your HR generalist handles? Is it left for you to try to handle on your own? The most important thing that you can do to minimize the risk of an investigation turning into a retaliation complaint is to take it seriously and to make sure the investigator is also. When the investigation is performed in earnest, you have the double benefit of avoiding further complaints while demonstrating to the individual who filed the complaint—and by extension, the eventual reviewing authority—that you are acting in good faith.

If you want to make sure your internal investigations aren’t leaving you open to liability, Luchansky Law can help you develop internal investigation protocols and train your team to perform them so that your company is protected from risk, not exposed to it. Want to learn more about internal investigations, or have a current employee complaint that needs to be investigated? Call me at Luchansky Law, 410.522.1020, or email me at alan@luchanskylaw.com. I would be happy to help.