This document provides guidance on investigating employee complaints. It emphasizes the importance of taking complaints seriously to avoid liability and protect employee morale. Common mistakes made in investigations include ignoring complaints, delaying investigations, and failing to be thorough. The goals of an investigation are to reach a fair, objective and defensible conclusion while protecting employee morale and decreasing liability risks. Key steps include conducting early, impartial interviews of all relevant parties; gathering documentation; determining credibility; and preparing a written report with the conclusions. Thorough documentation of the entire process is crucial.

1. Investigating
Employee
Complaints
PRESENTED BY:
Marcia A. Mahony
mmahony@k-glaw.com

2. Why Take Employee
Complaints Seriously?
Not all publicity is good publicity
Employee absences
High turnover
Lost market share: “Voting with
your pocketbook”
Avoid liability

4. Risks of Ignoring Complaints
 Chopourian vs. Catholic Healthcare
West:
 $168 million award for Plaintiff’s sexual
harassment claims. She filed multiple
complaints to no avail during her two-
year tenure.
 Ashley Alford vs. Aaron's Rents:
 $95 million verdict for sexual
harassment/assault claims. Company
had ignored her complaints.

5. High Dollar Exposure
 Ingraham vs. UBS Financial:
 Ingraham fired one week after she filed a
charge of sexual discrimination and
harassment. Jury awarded her
$10,592,000.
 Gretchen Carlson vs. Roger Ailes:
 Fox News paid $20 million to settle suit
against former CEO.
 Fox News:
 Settled claims against O’Reilly for $32
million.

6. Goals:
Reaching a Fair, Objective, and
Defensible Conclusion.
Protecting Employee Morale
Decreasing Risk of Liability

7. Common Investigation
Mistakes
 Ignoring Complaints
 Delaying Investigations
 Assuming that the Company can’t form a conclusion in he
said/she said situations.
 Failing to Assign the Investigation to an Impartial Person
 Going into the investigation with a pre-determined
conclusion
 Not taking the Investigation Seriously
 Not Being Thorough
 Failing to Reach a Conclusion
 Failing to Follow-up With the Complainant and the
Accused
 Failing to Prepare a Written Report

8. What Should You Say When
an Employee Complains
“Thank you for letting us know.”
No retaliation for having reported:
Avoiding the complainant
Failing to assign work to the complainant
Firing, demoting, or other retaliatory
action
The Company will investigate before
reaching any conclusion.

9. General Guidelines
 Consistency
 Listen Carefully and Objectively
 Choose the right investigator
 Impartiality is critical
 If you can, come to a conclusion about whether you think the
allegation(s) are true
 Start Investigating Early
 Document, document, document
 Gather the facts
 Gather relevant documents (emails, Company policies, etc…)
 Interview All Relevant Persons
 Confidentiality
 Prepare a chronology

10. Confidentiality
 Confidentiality: The Company will share information
only on a need-to-know basis.
 The NLRB takes the position that employers cannot ask
employees to keep information about the terms and
conditions of their employment confidential.
 This restriction applies to both union and non-union
workplaces.
 NEVER discuss the situation with people who do not
have a need-to-know
 Employers have a qualified privilege defense that enables
them talk about employees., BUT
 Talking with someone who does not need to know could lead
to a defamation claim

11. Investigative Process
Never form a predetermined conclusion
Start investigating early
Within 48 hours of the complaint
Ask who witnessed the incident(s)
Prepare interview questions
But be open to new questions that come up
as the investigation progresses
Ask who else should the Company interview.
Thank the witness for talking with you.

12. Determining Credibility
Plausibility: Does a witness’s story make sense?
Motive: Does a witness have a reason to lie?
Are there any corroborating documents?
Does the past record of the complainant,
accused, or any witness affect his or her
credibility?

13. Interviewing Witnesses
Observe body language, but don’t over interpret
Look for consistency in the witness’s statement
Do not reveal what you know
Explain that the Company takes the allegation(s)
seriously.
The Company will investigate before reaching any
conclusion(s)
NO RETALIATION
Is there any documentation?

14. Interviewing the Complainant &
Other Witnesses
 Who, what, when, where, why, how questions:
 What happened?
 When did it start?
 Frequency?
 Where did it occur?
 Witnesses?
 What prompted the behavior?
 When the incident(s) occurred, did the
complainant tell anyone else about the behavior?

15. Interviewing the Complainant
& Other Witnesses
 Was the behavior unwelcome?
 What effect did the behavior have on the
complainant?
 Embarrass, frighten, humiliate the complainant?
 Did the behavior affect productivity?
 What does the complainant want by way of
resolution?
 Does the complainant feel comfortable continuing to
work with the accused?
 Does the complainant want counseling?

16. Interviewing the Complainant
& Other Witnesses
 Ask clarifying questions to make sure you accurately
understand the witness
 Type of conduct
 Frequency of the alleged misconduct
 Where the incident(s) occurred
 Were there other incidents of alleged inappropriate
behavior toward other employees?
 Listen carefully:
 There’s a reason people have two ears and one
mouth.
 When you’re investigating, you need to listen more
than you talk.

17. Interviewing All Witnesses
(Complainant, Accused, Fact Witnesses)
At the end of the interview, again thank
witnesses for talking with you.

18. Interviewing the
Accused
Thank the employee for talking with you.
Remember that the accused does not have to talk with
you.
 If the accused refuses to talk with you, do not badger
 If the accused refuses to talk with you, remind him/her
that the Company would like to consider his/her side
of the story before forming a conclusion.
Be impartial
Ask for names of other witnesses
Is there any documentation?

19. Interviewing the
Accused
Expect the accused to deny the allegation(s)
Observe the accused’s reaction
Surprise
Anger
Disbelief
Ask for the accused’s idea(s) about what
could have caused the allegation
Recent employee discipline of the
complainant?

20. Interviewing Supervisors
Discipline problems on the part of either the
complainant or the accused?
Did the complainant report the allegation to the
supervisor?
Did the supervisor observe the conduct?
Names of other witnesses?
Any documentation?

21. Circle Back Around To
Witnesses
 After initial interviews, follow up with witnesses:
Does the witness recall anything in addition to
what he/she said in the initial interview?
Ask any new questions that may have come
up as a result of the investigator’s interview.
Review your written summary of the interview
with each witness, and have them sign your
summary of the interview.

22. Documentation
• Make sure you obtain statements from any
witnesses who both support or deny the
allegation(s) (if such witnesses exist).
 This is crucial. Otherwise, no matter what you
conclude, someone is going to think the
Company did not conduct a fair investigation.

23. Review the Investigation
Results
Review Company policies, witness statements, personnel
files, time records, etc..
Analyze the information obtained during the investigation
Make a decision based on the facts.
Who do you believe?
 Why?
 Consistency?
 Avoid—if you can—concluding that it’s just a he
said/she said situation.

24. Concluding the Investigation
What do you believe?
Why do you believe it?
What action should you take?
 Did the accused commit misconduct?
 What was the effect of the misconduct?
• Effect on other employees
• Risk of liability to the Company
 What is the accused’s disciplinary history?
 If severe misconduct, consider termination
 If you do not terminate the accused, but you conclude that
misconduct occurred, be sure to inform the accused that any
additional misconduct may result in termination.

25. Prepare a Report
Going back to your goals:
 Reaching a Fair, Objective, and Defensible Conclusion
• A timely, thorough and impartial investigation will result in a
fair, objective, and defensible conclusion
Employee Morale
 Employees will (most of the time) appreciate that the Company
took the time to reach a fair and objective conclusion
Decreasing Risk of Liability
 The issue is not whether the Company’s conclusion is correct.
 The issue is whether the decision-maker honestly believes the
conclusion he/she reached, and has information/facts to support
the Company’s conclusion.

26. Follow-up with the
Complainant and the Accused
Notify both the complainant and the accused of the result
of the investigation.
Obtain agreement from both the complainant and the
accused that they will promptly report any additional
conduct to the Company
DOCUMENT, DOCUMENT, DOCUMENT.

27. Questions

28. Marcia A. Mahony
Kightlinger | Gray, LLP
One Indiana Square, Suite 300
Indianapolis, IN 46204
317-638-4521
mmahony@k-glaw.com