Many employers don't reveal to the accused the written statement or accusations that form the basis for a workplace complaint. Therefore, you have few, if any, rights to read what your accuser has written or said about you. Key to any workplace investigation is managing supporting documentation and limiting access to it, even when it involves an employee who is accused of wrongdoing.
When an employee files a workplace complaint, she usually follows the steps prescribed in employee handbook or described in the company's guidelines. The steps may include contacting her supervisor or manager, or she might go straight to the human resources department. The company's designated staff member -- often an HR employee relations specialist -- who handles workplace complaints then interviews the accuser and takes a statement from her, along with any other documentation the accuser provides. In some cases, an employee composes a written statement of her own and turns it in to the HR specialist.
HR staff responsible for investigating employee complaints follow general investigative principles and best practices. A likely approach is to develop an investigative plan based on the investigator's own analytical and critical-thinking skills. This a far better investigative approach than, say, relying solely on the accuser's written statement to formulate questions to pose to the accused or to witnesses. Plus, the accuser's written statement becomes a part of the investigative file, which is off-limits to practically everyone in the company except the investigator, HR manager or director and the company's legal counsel.
When the investigator interviews you, she'll first explain why you've been called to the HR department to answer questions. She probably won't recite all of the details of the employee's complaint because she only needs to disclose what's necessary to proceed with her inquiries. An effective investigator will never read from the accuser's statement or show you the statement so that you can refute the accusations. The point of developing an investigative plan is to ask questions that elicit extemporaneous responses that aren't merely a response to the accuser's written statement.
During an investigation, the only written documentation that you might be allowed to see is documentary evidence. HR investigators and lawyers use documentary evidence to establish whether, for instance, you created or wrote something the accuser found offensive. For example, if the accuser said you created a hostile work environment by writing notes to her or sending emails, the investigator might present you with copies of those notes and emails to determine whether you indeed wrote them. Sharing documentary evidence with you, however, doesn't mean the investigator must share the accuser's written statement.
If the workplace complaint can't be resolved in-house, the accuser might choose to file a formal complaint or litigation against the employer. Depending on who the HR investigator is, whether she's on the HR staff, in-house legal counsel or an outside consultant, it could determine if the internal investigative notes are protected under the attorney-client or work-product privilege. In some cases, employers must produce all of the documents and statements generated during an investigation of a workplace issue. If the documents aren't privileged, you may be able to review the employer's documents produced during the discovery phase of the lawsuit.
- Kirkpatrick & Lockhart Preston Gates Ellis: Conducting Effective Workplace Investigations: Legal Requirements and Practice Considerations
- National Public Employer Labor Relations Association: Guidelines for Conducting Workplace Investigations
- Strategic HR Lawyer: Workplace Investigation Tip: Other Evidence to Consider
- Louisiana Society for Human Resource Management: Become an HR Super Sleuth
- Stockbyte/Stockbyte/Getty Images
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