Guest post by Terin Barbas Cremer, Esq.
Workplace complaints happen every day – whether it’s sexual harassment or unequal pay or creating a hostile work environment. When employees bring concerns to their employers of potentially illegal behavior, or perhaps just behavior that not in line with the company’s values, the company’s decision of what to do next sets the tone for the outcome and the resolution.
Companies often turn first to human resources (HR) when faced with these situations. HR as a fact finder can be problematic for 2 reasons: 1) small companies often don’t have appropriately trained HR personnel or 2) HR risks losing credibility when they act as fact finders for internal complaints because they are perceived as too close to the relevant parties (witnesses or decision makers). Consequently, I recommend that clients hire a third-party investigator. I suggest this to employees and employers, as oftentimes, the scenario is new to both parties and the employer may appreciate the employee asking for a separate party to be brought in. A prompt, impartial, and thorough investigation by an independent third-party investigator shows the employee they are being taken seriously, minimizes risk of retaliation claims internally, and creates a culture of perceived transparency.
Using an objective third-party investigator indicates that the employer, takes the allegations of misconduct seriously, want to understand the facts, and is willing to carry out the consequences. The third-party investigator’s role is that of a fact finder. Their scope is limited to the relevant facts which he reports back to the company.
Due to their limited history with the parties third-party investigators are impartial, and will likely be more trusted by fact witnesses. This will result in a more objective investigation resolution. It also eliminates concerns fact witnesses may have regarding future interactions with internal fact finders following the investigation. Internal investigators can lose credibility and objectivity with the staff and could be more closely scrutinized in the event of litigation.
Retaliation claims are the most common type of claim filed with the EEOC claim. As soon as an employer receives a complaint it should assume a retaliation claim will be next. It’s human nature to be sensitive to being treated differently or looked upon as a trouble maker following the complaint. For example, an employee who under ordinary circumstances may have received a lower bonus regardless of whether a complaint was made then raises a claim that the lower bonus was retaliatory.
Retaliation claims can be mitigated through the use of third-party investigator because fewer employees are made aware of the situation and therefore cannot legally retaliate for facts which they are unaware of. The third party investigator allows the company to conduct a thorough investigation, while minimizing opportunities for the perception of retaliation.
In summary, hiring a third-party investigator is a best practice for employers. When hiring a third-party investigator hire someone with strong references, who will be able to generate trust with the personalities involved based on the allegations made, and is knowledgeable of the laws and potential violations. A quick and thorough investigation will generate trust within your organization, quickly achieve resolution, and likely limit future liability.