Articles by Rachel Ablin, Esq.

In workplace sexual harassment cases, investigators often have to make recommendations with evidence that is less complete than they would like. It may come down to a “he said, she said” situation in which the investigator must make judgments about the relative credibility of the parties and witnesses.

Workplace investigations of employee complaints can be crucial for solving and preventing workplace conflicts, preserving an organization’s public reputation, avoiding litigation, and protecting organizations if employees do take legal action. But not every workplace complaint requires a formal investigation. How can you tell when to investigate and what level of investigation to use? You need to look at the type of complaint and its possible impact on the organization.

The recent firing of McDonald’s former CEO Steve Easterbrook highlights the problem of drawing the line between appropriate and inappropriate romantic relationships in the workplace. Easterbrook was a successful CEO. McDonald’s stock price more than doubled during his 4-year tenure. However, he lost his job because a consensual relationship with another company employee violated the company’s code of conduct, which states “employees who have a direct or indirect reporting relationship to each other are prohibited from dating or having a sexual relationship.” Easterbrook publicly admitted making a mistake and said it was time for him to move on.

There’s not a lot of room for error when investigating complaints of workplace harassment or discrimination. Mistakes made during the investigation process can expose your client to expensive liability in the future. That’s an unnecessary risk that can be minimized with proper preparation and by using a neutral and experienced investigator.

Different types of questions can elicit different answers. If you are investigating a workplace complaint of harassment, discrimination, or any other legal violation, the questions you ask are the key to uncovering the information you need to make informed decisions and to protect your organization. You should approach the questioning from two angles, asking both specific and open-ended questions.

Retaliation claims are common. In Fiscal Year 2018, the EEOC received more than 39,000 claims of retaliation — and that doesn’t even count the claims filed with state or local agencies. Companies need to have policies and procedures in place that will help them avoid these potentially costly claims.

California and New York State recently passed laws that prohibit employers from discriminating against job applicants and employees because of their natural hairstyles, including braids, dreadlocks, and twists.

Employers might face more age discrimination lawsuits if Congress passes the Protecting Older Workers Against Discrimination Act (POWADA). This proposed bill would essentially reverse a 2009 Supreme Court decision that had made it harder for workers to win age-discrimination claims.

Businesses conducting internal investigations need to ensure those investigations are impartial and independent. For companies that choose to handle the investigatory process in-house and ultimately “clear” the accused of any wrongdoing, there can be a perception that investigators and company leaders favored the accused – especially when the accused person is him- or herself a senior leader or highly valued employee.

The outcome of a workplace investigation typically depends on information gleaned through witness interviews. That information can, in turn, lead investigators to explore new or different avenues toward uncovering the truth. Witness cooperation can be critically important. Unfortunately, witnesses are sometimes hesitant to share what they know for fear of retaliation or retribution. In other cases, witnesses may be hostile or wholly uncooperative. Here are several tips to help you deal with witnesses who may hold the keys to the information you need, but who are reluctant to participate in the investigatory process.