One of the biggest mistakes that an employer can make is failing to conduct a fair and unbiased investigation when a supervisor is accused of wrongdoing by an employee. In many years of consultations with employers, I have found that companies often rely on Human Resources to provide the unbiased review of supervisor conduct to reach a result which will protect the company from potential liability. To provide that essential unbiased investigation, Human Resources personnel must be independent and not influenced by the status or position or friendship with the subjects of the investigation. The Human Resources personnel must be trained how to properly conduct an investigation. If there is any question that Human Resources has the authority or training or the impartiality, the company should consider retaining an outside person to do the investigation.
Why is this so important for the protection of the company? At some point a judge or jury or arbitrator will look at how the company responded when an employee complained about discrimination or retaliation. Fairness is a key component. Did the person investigating ask questions which were open ended allowing the witnesses to tell the facts of what was seen or observed? Or were the questions directed toward the result of siding with the supervisor against the employee? How credible is the explanation provided by the supervisor? What did the investigator do to confirm the truth of the facts of the supervisor, or of the employee or of the witnesses? If an untrained person conducts the investigation, not only will the company potentially lose the defense of having a policy which protects against unfair bias in employment decisions, but the company could be strictly liable in certain circumstances for the supervisor’s conduct.