If you run a business, it’s a fact of life that eventually you will have an employee who engages in some kind of misconduct.  It might involve  a complaint of inappropriate sexual advances.  Maybe it’s a  whistleblower’s complaint that illegal conduct is taking place.  There are many possibilities.  When these things happen, the best protection for the business usually involves an investigation.  Done correctly an investigation can help to provide that protection.  An investigation done poorly, however, can cause more legal problems than it solves.

New Jersey law does not require definitive proof that misconduct occurred for an employer to impose discipline on an employee.  Rather, it only requires a  good-faith determination, based upon a good-faith investigation, that misconduct occurred. Thus, it is the investigation —as much as the level of misconduct — that matters to a favorable resolution of the problem.

The first question you will face is simple: should we conduct an investigation at all?  While there may be situations in which an investigation is not necessary, your default position should be: yes, investigate.  It’s usually the wisest course.

The next question is who should conduct the investigation.  Internal investigations conducted by HR staff or another company employee  may be tempting; on occasion they will be  feasible.  Generally, however, the better option is to utilize a neutral investigator from outside of the company.  An employment law attorney with the right kind of experience  is often a good choice to conduct an investigation.  Attorneys are trained to spot and navigate tricky legal issues.  If called to testify in court they will have more credibility than an internal employee , such as an HR person, whose credibility may be clouded by his paycheck and loyalty to the employer.  An outside investigator, on the other hand, can provide an objective report of what happened, with appropriate recommendations based upon a sophisticated understanding of the legal issues that are involved.

In short, it’s almost always better to use someone from outside of your company, such as an attorney, to investigate employee complaints.

Here are some of the things that you should think about in deciding whether an investigation is part of the solution to a problem that your business is facing.

  1. How do the risks and benefits of investigating versus not investigating balance out?  Bear in mind that in any given situation there may be reasons not to investigate, but seldom a good reason.
  2. How do I avoid compromising the investigation through possible bias?  Remember, while your focus may be on ensuring fair treatment for the complaining employee, the accused has rights, too.  Will your investigation be structured to protect the rights of all who are involved?  A neutral third person can serve as an important firewall against unintended bias or the perception of bias.  The EEOC, for instance, looks for timely responses to and investigations of complaints, performed by “well-trained, objective, and neutral investigators.”   https://www.eeoc.gov/eeoc/task_force/harassment/checklist3.cfm
  3. Will your investigation adhere to EEOC guidelines?  They are important, and failure to incorporate them into your plan of investigation can compromise the protection that the investigation is intended to provide.
  4. Is the investigation report prepared with the end in mind? That is, can it be defended, down to the last comma, in a court of law?  If not, it’s not giving you the protection that you want.
  5. Will the report be prepared objectively, with input from all potential witnesses?
  6. Have you considered how to handle the complaint that is made “confidentially”? What do you do with the complaint of an employee who complains about a colleague but asks you not to investigate or take other action?  What if someone witnesses inappropriate behavior between co-workers, tells HR, but says that he does not want to get involved beyond making the report?
  7. Speed counts.  Once a complaint is made, have you set the investigatory wheels in motion promptly?
  8. Is discipline applied evenly from one instance of misconduct to the next? While the law allows employers a fair amount of freedom of action, it remains vitally important that similar misconduct be punished similarly irrespective of who  engages in it.
  9. What do you do if evidence is manufactured by the misbehaving employee to “set up” or retaliate against the complaining employee?  It happens.  Here’s an example:  Vasquez v. Empress Ambulance Service, Inc. https://scholar.google.com/scholar_case?case=8388573254760198724&hl=en&as_sdt=6&as_vis=1&oi=scholarr; http://lawfirmnewjersey.com/employers-must-not-let-appearances-deceive-in-internal-investigations/

Steinberg Law, LLC is experienced in conducting workplace investigations.  We will respond to your investigatory needs promptly.  Please contact us to discuss your requirements.