Q&A: WORKPLACE INVESTIGATION MISHAPS TO AVOID

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An employee complaint can easily morph into a lawsuit against the company, so it’s important that the person tapped to vet the allegation understands the intricacies of conducting a workplace investigation, a Chicago-based labor attorney said at an employment law seminar.

Workplace investigations usually arise from harassment, discrimination or retaliation claims; violations of company policies; employee misconduct; and whistle-blowing complaints.

“A complaint doesn’t have to be written down to trigger the employer’s duty to investigate,” Aaron R. Gelb, an attorney at Vedder Price’s Chicago office, told participants at a symposium sponsored by the firm's labor and employment group. In late October, Gelb delivered a presentation in Washington, D.C., on conducting workplace investigations and spoke with me after the session.

During the interview, he discussed the cat’s paw theory of employer liability, the investigator’s key goal and an in-house probe into a charge of discrimination filed with the Equal Employment Opportunity Commission. 

Investigation May Scratch ‘Cat’s Paw’ Claim

Bloomberg BNA: You had mentioned the cat’s paw theory during the presentation. Why is the theory significant to a workplace investigation? 

Gelb: Here’s one way: Let’s say you have a sexist manager named Fred who wants to get rid of one of his female workers named Sally. Fred reports an incident to the human resources department involving Sally that he wouldn’t have disclosed if she was a man, suggesting that she be terminated.  If the company simply rubber stamps Fred’s recommendation and fires Sally, then his bias is, in essence, being carried out by the company even though the individuals making the final decision weren’t motivated by gender animus.

However, let’s say the company decides to conduct an independent investigation of Fred’s allegations by interviewing Fred, Sally and other witnesses. The company’s investigator determines that Sally engaged in conduct that constitutes a terminable offense under the company’s policies and moves to separate Sally.

Assuming the company has conducted a thorough investigation upon which a reasonable decisionmaker can rely, then the company can argue that there was no connection between the discriminatory bias that motivated Fred’s report and Sally’s termination.  

While the various federal appellate circuits employ somewhat different tests when evaluating cat’s paw claims, ensuring that alleged misconduct is investigated—even when purportedly observed by a manager—can help insulate an employer from liability.

He-Said-She Said Detective Seeks Truth

Bloomberg BNA: How does the investigator strike a balance between being perceived as neutral and fair, while at the same time making it clear that he or she is conducting the investigation on the company’s behalf? 

Gelb: The goal of any workplace investigation should be to determine, as best as possible, what actually happened, so that the employer can take steps to ensure that it is in compliance with the applicable labor and employment laws.  Ensuring compliance benefits everyone involved.  

The investigation shouldn’t be conducted with an eye toward proving or disproving the allegations, but rather it should focus on getting at the truth.  The investigator should strive to make sure everyone who is interviewed understands that he or she has no stake in the outcome, isn’t taking sides as far as the accuser or the accused, and is primarily focused on determining if the company’s policies have been violated.

Investigating an EEOC Charge

Bloomberg BNA: Talk about a workplace investigation launched because a current employee has filed a charge of discrimination with the EEOC. Should the investigator interview the employee who has filed the charge?

Gelb: Many employers will promptly turn such matters over to their internal or outside counsel, rather than ask human resources to investigate a claim that may result in litigation.  In some cases, I recommend that the employer hire a professional third-party investigator, particularly when there is the potential for a claim that members of the human resources department have a conflict of interest in the outcome. 

While an external investigator hired by the company may not be perceived as being entirely neutral because he or she is being paid by the company, the employer should take steps to avoid any appearance that it is guiding the investigation towards a certain outcome. 

While an employer can interview a current employee who has filed a charge, it should be done carefully and ideally only after consulting with counsel.  The focus should be on determining whether or not a policy violation occurred, not to gather information to defend against the charge. 

Indeed, I think an employer that sticks its head in the sand, declining to conduct an internal investigation simply because a charge was filed, is taking a significant risk. 

That said, the employee may well decline to cooperate or ask to have his or her attorney present for any interview.  While the employer need not accede to such a request, it should be sure to document the reasons it was unable to interview the employee and notify the employee in writing that his or her refusal to be interviewed will impact the company’s ability to conduct a thorough investigation. 

Further, keep in mind that using an attorney to investigate can result in a waiver of the attorney-client privilege if the lawyer, who is conducting the investigation, also is advising the employer on how to respond to the allegations.  In some jurisdictions, the firm at which the attorney practices may be precluded from representing the company in subsequent litigation if the lawyer or investigator will be a testifying witness.

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