Misconduct Investigations: When Punting Can Save the Game A
bungled investigation can quickly turn a reasonable, still
employed complainant into a hurt, damaged and angry
former-employee-plaintiff. --Anonymous
For Tammie C. Allen, former admin assistant to MTSU President
Sidney McPhee, the unsolicited advances, kisses, groping and
requests for sexual activities from her boss were less injurious
than the humiliating and biased sexual harassment investigation
that followed her complaint. She expressed this outrage in a
civil complaint, seeking monetary redress for incurred medical
expenses and "severe emotional distress, mental anguish,
indignation, wounded pride, shame and despair." Among the
allegations: the investigators were under the direct supervision
of the alleged offender; Ms. Allen's attempts to provide the
investigators with more witnesses to the alleged sexual
harassment were ignored; Allen took a polygraph test in November
to prove her case, but the TBR refused to consider that as a
piece of evidence; her request for a meeting to discuss the
findings of the investigation was denied; she received an
involuntary transfer following the investigation that resulted
in less responsibility, prestige and promotional opportunities.
Just the FACTS
The integrity of the investigatory process will be jeopardized
if the investigator is perceived (rightly or wrongly) as partial
or sympathetic to one view or another. In some situations, the
conclusion of an internal investigation and the action it took
based on the investigation will be questioned either as a
whitewash or as a pretext for firing the individual without
breaching his contract. This is just one of the circumstances
where it pays to bring in an outsider. However, until March of
this year, third-party investigations of employee misconduct
were subject to the notice and consent requirements of the Fair
Credit Reporting Act of 1970. At the same time, Supreme Court
decisions in Ellerth and Faragher [Burlington Industries, Inc.
v. Ellerth, 73 Emp. Prac. Dec. (CCH) ¶45,340 and Faragher v.
City of Boca Raton, 73 Emp. Prac. Dec. (CCH) ¶45,341] made it
imperative for employers to conduct investigations of harassment
allegations in order to meet the second prong of the affirmative
defense. Employers were in a double bind, attempting to comply
with the requirements for a reasonable investigation while also
complying with the FCRA requirements.
Third-party investigations of employee misconduct are no longer
subject to the notice and consent requirements of the Fair
Credit Reporting Act of 1970 (FCRA). On December 4, the
President signed the "Fair and Accurate Credit Transactions Act
of 2003," P.L. 108-159. Section 611 of the new law amends the
FCRA's definition of "consumer report" to exclude communications
made to an employer in connection with an investigation of (1)
suspected misconduct relating to employment, or (2) compliance
with federal, state or local laws and regulations or
pre-existing written employer policies.
The 2003 FCRA amendments clarify that communications to an
employer by outside third parties hired to investigate employee
misconduct or compliance with the employer's pre existing
written policies will not be considered "consumer reports" and
will not require advance notice or authorization. If any adverse
action is taken based on the communication, however, the
employer generally will be required to disclose to the employee
a summary containing the nature and substance of the
communication.
The Trend Toward Outsourcing
However, even before the FACT Act was signed, many employment
attorneys and human resource professionals had begun advising
employers to pay more attention to conducting a reasonable
investigation than worrying about avoiding the FCRA
requirements. There were some court decisions that pretty much
dismissed the FTC opinion letter and follow-up opinions of the
FTC General Counsel. Recent opinion has shifted toward using
third party investigators, with or without full compliance with
the FCRA, as interpreted. Part of this advice was EEOC-driven.
Chairwoman Castro has repeatedly emphasized the EEOC's position
with respect to the importance of using outside investigators to
conduct investigations into suspected discrimination or
harassment. Specifically, Chairwoman Castro noted that the use
of outside investigators is important:
1) where the employer lacks the resources to conduct
investigations in-house 2) where the employer wishes to have an
objective and unbiased party investigate the conduct at issue;
3) where the conduct complained of was perpetrated by very
high-level employees within the company.
Although the EEOC does not generally require employers to use
outside parties to conduct investigations into harassment
claims, the EEOC has expressed the view that using outside
investigators is important in certain circumstances, and may
even be necessary where the accused harasser is a senior company
official or where there is otherwise a conflict of interest.
Examples of such conflicts include situations where an
investigator:
* Has a personal relationship with either party. * Has witnessed
any alleged material occurrence. * Has very strong feelings
about either the complainant or the accused
Thus, employers who indiscriminately conduct internal
investigations not only lose what advantages exist for having
neutral third parties conduct such investigations, they risk
running afoul of EEOC guidance.
When to Outsource - And Why
While most employers are mainly concerned about liability to the
victim of misconduct, there is a growing trend among employees
who are accused of and disciplined for misconduct to strike back
and accuse their employers of violating their rights during the
investigatory or disciplinary process. Conducting a fair and
thorough investigation reduces the risk that an employee will be
disciplined or discharged for something he or she did not do and
provides a powerful defense against a claim that the company
condoned unlawful conduct in the workplace.
Employers should consider using an outside investigator for four
reasons:
1) Promptness. Despite the need to promptly investigate
allegations of misconduct, investigations are not always
management's number one priority.
2) Expertise. Outside investigators are specialists whose
expertise results in a more thorough investigation, especially
where the organization involved is a small one. This expertise
is particularly critical when the allegations are serious in
nature and the stakes are high, such as sexual assault. In
addition, outside investigators have the courtroom experience
that will make them a powerful witness should the complaint
eventually go to trial.
3) Impartiality. Although the employer hires the investigator,
Morgan believes there still is the sense that the investigation
is not an "inside" job. Based on my experience conducting
investigations, I believe people are more open and more
willingly share more information with an outsider, especially
when the allegations are against a high-ranking individual in
the organization. The objectivity of an internal investigation
in that scenario is more easily quest
4) Confidentiality. There is a strong need for confidentiality
for the persons who are asked to report what has happened. They
are often concerned about retribution, so the ability to offer a
considerable blanket of protection is helpful. When I am hired
to conduct an investigation, I want to know to what degree the
comments I gather will be held in confidence by management.
The Bottom Line Increasingly, the scales are tipped in favor or
employers who use outside investigators to investigate
misconduct allegations, particularly when they involve a
potential conflict of interest, possible litigation, or
high-ranking individuals.
Checklist: Advantages of Using An Outside Investigator Now that
employers are relieved of some of the notice and disclosure
requirements of the Fair Credit Reporting Act when investigating
allegations of misconduct, they may want to consider some of the
following advantages to bringing in an outside investigator.
Knowing that he or she will not have to "live" with
either the accused or the accuser after the investigation may
help the investigator remain impartial.
The outside investigator has no previous experience
with any of the parties involved and so comes to the
investigation without the kinds of prejudices that arise from
knowing someone's past performance or history.
Witnesses may be more forthcoming with an outsider,
not having to fear that what they tell the person may someday
become "conversation around the water cooler."
Using someone from an outside investigation firm may
benefit the investigation as he or she could be familiar with
the type of investigation needed and have questions to ask or
tools to use that might not have been thought of internally.
The outside investigator will be brought in
specifically for the purpose of carrying out the investigation
and will not require that someone from the organization find
time in his or her schedule to do the work.
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