At some point, all employers in the hospitality industry will be required to conduct an investigation in response to an employee complaint of workplace misconduct. Whether the complaint involves harassment, discrimination, or some other subject, a prompt and well-conducted investigation will help to shield the employer from liability and sends a message to employees that the employer is committed to fair treatment of its employees and takes complaints seriously.
Keep in the mind these tips:
- Choose a trained & impartial investigator. One of the most important first steps in any investigation is the selection of an investigator. No matter how much planning goes into an investigation, it is only as good as the investigator. The investigator must be impartial and perceived by the workforce as impartial. The investigator should also be capable of testifying in court since they may be named as a witness.
- The purpose and scope of the investigation must be clearly defined. Not all investigations require the same approach. Depending upon the nature of the complaint, a quick and informal investigation may be sufficient to obtain the required information; however, more complex complaints may require a more formal procedure. Clearly defined goals will keep an investigation on track and lead to correct conclusions.
- Focus on interviews. Usually, the best way to gather information is simply by asking questions. Most investigations should involve at least two interviews: one of the employee accused of wrongdoing and another of the employee who complained or was the victim. Interviews of other witnesses will often be required. The investigator should start questioning with broad and open-ended questions intended to uncover the “who, what, where, why, and when” of the alleged conduct. Difficult or embarrassing questions should be asked toward the end of the interview.
- When possible, maintain confidentiality. Confidentiality is often critical to the success of a workplace investigation. Employees are more likely to come forward with complaints if they believe their concerns will be addressed confidentially, and witnesses are more likely to speak candidly and truthfully if they believe their comments will remain confidential; however, investigators should advise all witnesses that confidentiality cannot be guaranteed. Some information concerning the allegations must be disclosed in order for other witnesses to fully share the scope of their relevant information. The National Labor Relations Board has held that blanket requests to employees not to discuss the investigation may violate the employees’ statutory right to engage in “concerted activity with respect to the terms and conditions of their employment.”
- Properly document the investigation. The investigation file typically includes copies of relevant personnel files, email messages, company policies, and correspondence. Detailed investigation and interview notes should be maintained. At the conclusion of the investigation, an investigation report should be prepared which identifies the relevant company policies or guidelines, details how and when the problem came to the employer’s attention, describes what interviews were (and were not) conducted, what evidence was considered, and what conclusions were reached.
- Communicate the outcome. The results of an investigation must be reported verbally or in writing to management-level decision makers to allow them to make decisions based on investigation results. The report need not be shared with those involved. Rather than providing the full report, employees need only be provided with the result of the investigation and any remedial action to be taken.
A prompt and effective investigation is an effective tool and keeping these guidelines in mind can significantly reduce liability exposure. •
Please contact Michael Rowan (mrowan@shumakerwilliams.com) at 717-763-1121 with any questions.
Michael E. Rowan, Esquire
SHUMAKER WILLIAMS, P.C.
General Counsel, Pennsylvania
Restaurant & Lodging Association
