Chapter 27 - § 27.3 • RESPONDING TO EMPLOYEE COMPLAINTS

• Jurisdiction: Colorado

§ 27.3 • RESPONDING TO EMPLOYEE COMPLAINTS

Effective management of employee concerns and complaints is essential to maintaining positive employee morale and managing workplace-related risks. Every employer should have in place formal and informal dispute resolution and investigation protocols, which should be implemented when management learns of an employee complaint. Failing to take such complaints seriously, especially when they relate to harassment or discrimination, can be problematic, even where the complaint is unfounded.

§ 27.3.1—Open-Door Policies

Assuring employees that they may bring concerns or complaints to management without fear of retaliation tends to foster easier and earlier resolution of initial employment disputes. Such a guideline also may mitigate employer liability in the event that an employee fails to use the open-door process before bringing suit.

An open-door policy may be as simple as:

Acme stresses an open-door atmosphere. If you have a problem or concern that you believe Acme can help solve, you should discuss it with your supervisor or another member of Acme's management team.

Some employers add an explicit nonretaliation pledge, such as "Acme will not tolerate retaliation of any kind against any employee who uses the Open-Door Process in good faith." Other policies are even more elaborate, establishing a process for escalating concerns to upper management and sometimes to the CEO. A few companies allow "hearings" on complaints, or require management to respond to open-door complaints in writing within a certain amount of time.

Any of these approaches may be appropriate in a given workplace. But any employer that adopts an open-door philosophy must do what it says it will do by listening to employee concerns and responding to them appropriately and in compliance with the stated policy.

§ 27.3.2—Conducting Workplace Investigations

Virtually every employer from time to time learns that an employee may be harassing co-workers, violating company work rules, or even stealing from the company. Whether the allegation arises from the complaint of a customer or co-worker, an anonymous tip, or because a manager personally observes misconduct, some sort of investigation ordinarily is necessary. In some circumstances, an investigation is necessary to limit or avoid legal liability. In other circumstances, an investigation is simply a good business practice. In all circumstances, however, a sloppy investigation can be worse than no investigation at all.

Why Investigate?

Most workplace investigations serve two functions: allowing the employer to make informed and effective employment decisions and limiting employer liability. Some investigations are simply a matter of good business practice. For example, employers cannot rightly let a suspicion of employee theft go without any inquiry. In other situations, employers have a legal duty to investigate. For example, Title VII requires an employer to investigate charges of workplace harassment. See, e.g., Wilson v. Tulsa Junior College, 164 F.3d 534, 542-43 (10th Cir. 1998). Indeed, when an allegation involves sexual or otherwise illegal harassment, a detailed or "formal" complaint is not required before the employer is legally required to investigate. Rather, an employer must investigate when it knows or should know that a work environment may be hostile. Hansel v. Pub. Serv. Co., 778 F. Supp. 1126, 1133 (D. Colo. 1991) ("An employer simply cannot sit back and wait for complaints. The very nature of sexual harassment inhibits its victims from coming forward because of fear of retaliation."). Likewise, an employer who places an employee in a position where he or she can cause harm to another may have a duty to investigate the employee's suitability for the job. DeBose v. Bear Valley Church of Christ, 890 P.2d 214, 230-31 (Colo. App. 1994) (employer may be liable for employee's misconduct where employer was aware of acts of, or propensity for, misconduct and nonetheless hired or retained employee), rev'd on other grounds, 928 P.2d 1315 (Colo. 1996).

In such circumstances, a prompt and thorough investigation of a complaint can minimize an employer's potential liability for the acts of its employees. Employers cannot always control the acts of their employees or prevent misconduct, but those who respond swiftly to punish offenders typically will not be judged harshly by a jury or a judge, and in any event generally will be judged less harshly than employers who respond to complaints by doing nothing.

The Ideal Investigation

The ideal investigation is:

• Timely. An employer who responds quickly to a complaint is viewed in a much better light than an employer who delays an investigation. See Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1133-34 (4th Cir. 1995) (overruling entry of summary judgment on Title VII constructive discharge claim, based in part on evidence of delayed and inadequate investigation after plaintiff complained about discrimination).
• Thorough and professional. Allegations of harassment that are investigated only to the extent that the alleged harasser denies the charges often are legally inadequate. Heelan v. Johns-Manville Corp., 451 F. Supp. 1382, 1388-89 (D. Colo. 1978) (entering judgment in plaintiff's favor, after a bench trial, where evidence showed that employer's investigation of harassment allegations consisted of asking the accused whether he did it; when he denied misconduct, the employer did nothing further); Amirmokri, 60 F.3d at 1131 (a thorough investigation consists of more than a superficial response). A thorough investigation generally involves interviewing relevant witnesses; reviewing relevant employer policies, records, and other documents; exploring both sides of the story; and developing complete and professional documentation of the investigation.
• Conducted using appropriate techniques. For example, an investigator should not interrogate a witness, victim, or accused for hours at a time or prevent him or her from leaving. See Buckel v. Nunn, 891 P.2d 16, 22 (Or. App. 1995) (affirming jury verdict on employee's false imprisonment claim where employer questioned employee for several hours, blocked her exit from her office, and told employee that her cooperation would dictate whether she went home or to jail).
• Conducted by an unbiased investigator. If HR is not capable of remaining unbiased or simply has been accused of bias by the victim, a company should consider retaining an outside investigator through counsel who can provide an unbiased assessment of the complaint that will not be tainted by employee accusations that the investigator's viewpoint was slanted toward the company.
• Confidential. Employers should strive to maintain confidentiality to the greatest extent possible, and limit access to information about the investigation to those with a need to know.

Planning and Conducting the Investigation

An investigation cannot be completed properly unless it is carefully planned and then executed according to that plan. Hastily running into the middle of a mess and then thrashing aimlessly about can only make a challenging situation worse. In some cases, a bad investigation can be worse than no investigation, and may result in otherwise avoidable retaliation claims. An employer has only one opportunity to perform an investigation correctly, and often is unable to undo a mistake. Before undertaking any investigation, an employer must consider carefully how to address the facts presented and preserve the status quo while the investigation is ongoing.

Selecting the Investigator

Selecting the right investigator is essential. A good investigator is diligent, independent, objective, a good listener, a good questioner, experienced, and has good judgment. To help ensure independence and objectivity, the investigator should be outside the chain of command of the accused. Employers should keep in mind that in the event of a lawsuit arising out of an investigation, the investigator almost certainly will be an important witness. Therefore, it is critical that the investigator be articulate and able to inspire confidence that he or she was thorough, fair, and objective. Also, the employer should consider carefully whether any past relationship or interaction between the investigator and either the accused or the accuser later might be claimed to create an appearance of bias. In short, before assigning an investigator, the employer should ask the same questions that might be put to the investigator on cross examination.

Outside counsel can act as an investigator. As discussed below, by choosing an attorney to investigate an incident, it may be possible to protect the attorney's interview notes and reports from discovery in later litigation. The attorney who serves as the investigator (and that attorney's law firm), however, probably will not be able to defend the employer if litigation ensues because the attorney is likely to be a witness. Also, protecting investigative notes may not be in the employer's best interest. If the employer responded promptly and properly to an allegation, it probably will want to be able to show that it did so by offering, among other things, the investigative file.

In some circumstances, it may be helpful or necessary to hire a personnel and human resources consultant or professional investigator to conduct an investigation. The use of an outside investigator may be especially appropriate when the accused is a high-level or otherwise influential employee, or when the complaint may receive media scrutiny and an added appearance of impartiality is important. As discussed below, such investigations may be structured to be protected by the attorney work-product doctrine.

Employers should consider using two interviewers, especially in cases involving allegations of sexual harassment. In such situations, having the witnesses, especially the accuser, interviewed by a male and a female...