It seems that every day we are hearing something about investigations involving the White House.
Whether it is the investigation into Russia’s hacking of the election that has resulted in the indictment of suspected Russian spies or President Trump’s call for an investigation into whether he was wiretapped, it seems everyone wants an investigation.
Such calls for investigations bring up other questions — should there even be an investigation, who should do the investigation, when the investigation should start, and when should the investigation end. These are all questions faced by employers when addressing employee complaints.
It may not be fair to compare investigations into employee conduct to Congressional hearings or law enforcement investigations, but employers can learn a lot from those investigations. In later posts, we’ll get into pitfalls of a poor investigation, but for now we are focusing on whether an investigation is necessary.
Employers frequently face complaints from employees of varying degrees of credulity and proof. What does an employer do with the “crazy” or unsubstantiated complaint?
Let’s look for example at President Trump’s recent tweets about alleged wiretapping. Those are pretty sensational claims, that, if true, mean members of the Obama Administration violated the law. Based on what we know now, the complaint appears to be unsubstantiated by any proof. Instead, as the White House calls for others to come forward with that proof, it appears that the allegations are based on untrustworthy sources or the President’s bare belief. This is not that dissimilar from an employee who claims that he or she has been discriminated against based on a “feeling.”
Employers are often tempted to stop the investigation at this point. After all, if the employee cannot come forward with any proof, then why should the employer waste resources continuing the investigation?
There are two very good reasons to continue. First, although the employee cannot articulate proof, the employee’s feeling may actually be correct. In those cases, stopping the investigation early means that a problem will not be uncovered and resolved, leading to much greater liability in the future.
The second reason is for the integrity of the complaint process. If employees feel that their complaints are summarily dismissed without any investigation, those employees will believe that filing a complaint is fruitless. Those employees are likely to tell others not to complain because the company does not take complaints seriously. Once that happens, employees who file complaints in court before filing any internal complaints will have an argument against the employer’s affirmative defense that the employee failed to use the internal complaint procedure.
So, the lesson is, even if the complaint seems to be a waste of time, devote some time to investigating it. Just how much time to invest will be the subject of a future post.