Conducting a thorough internal investigation in employment claims can mean the difference between defeating an Equal Employment Opportunities Commission claim early and spending potentially hundreds of thousands defending it. A proper employment investigation may save your organization time, money and very negative publicity.
The U.S. EEOC enforces discriminatory employment laws, including discrimination based on gender, age, race, sexual orientation, and disability. An EEOC claim is an employee’s first step in alleging discrimination in the workplace. How your organization responds to the initial complaint is of vital importance.
At a recent Jones, Skelton & Hochuli Law Firm seminar in
Even with the best employment policy and airtight employment practices, “Claims will come anyway,” according to the firm. Your policies should guide your investigation and allow you to enforce violations “consistently and evenhandedly,” Byrnes said. “Your policies are only as good as how you use and implement them.”
Make sure your policies include a well-defined complaint procedure. Treat every complaint seriously, and if you use an 800-reporting number, Byrne cautioned, ensure that no complaints fall through the cracks. Once you are on notice, you must act promptly. Are rumors notice? “I heard so and so making lewd jokes,” one employee complains. Is this sufficient to act? Yes, Byrnes warns. “As a rumor has more legs,” she advised, you must approach employees to learn more and to determine how to proceed.
Who should complete the investigation? There are pros and cons to various approaches. If you use outside consultants including attorneys, they must understand your organizational structure well. Hiring counsel early may help to protect your work product to some extent and makes it easier for you to break bad news to your senior managers. The downside, of course, is the preliminary cost to investigate. If the claim is quashed at initial complaint, however, your initial investment will be recouped, because defending an employment claim can be extraordinarily expensive and disruptive to your workforce.
To investigate, many firms rely on internal personnel, such as a senior human resources officer or a risk management employee. This employee must be uninvolved in the employment action itself, an experienced investigator and should be able to handle awkward situation tactfully and discretely.
Employment claims are expensive, both to investigate and to defend. The downside of losing an employment claim is that not only will you owe your own attorney’s fees and any damages, you will probably be forced to pay the other side’s fees, as well. In the next article, we will cover conducting the EEOC investigation.