What if an employer waits too long to conduct a workplace investigation?
In a perfect world, employers conduct prompt, impartial and thorough workplace investigations soon after an employee submits a complaint. However, sometimes employers don’t realize that an employee’s complaint warrants an investigation, or the initial bad behavior escalates and triggers an investigation. Should an employer proceed with an investigation, even if it’s untimely? What if investigating a matter after the dust has already settled draws unwanted attention?
There are several good reasons to proceed with an investigation, even if it’s not timely. The primary purpose of Title VII is “to avoid harm”. See Cox v Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 149 (2d Cir. 2014). A workplace investigation can assist an employer in determining whether harm has occurred, and what steps the employer should take to avoid any future harm. Proceeding with a workplace investigation shows that the company is committed to maintaining a fair and respectful workplace, is eager to address any potential ongoing issues, and demonstrates a commitment to addressing employee concerns. Investigations help a company avoid additional liability and create a healthier work environment.
Investigating a “stale” complaint can be challenging, but not impossible. Witnesses may no longer be at the company and may be unwilling to speak with the company or its representatives. Remaining employees may have fuzzy memories and be reluctant to relive the past. Communicating with employees involved in a stale complaint is key to the investigation’s success. Explaining the employer’s commitment to providing a thorough, neutral investigation demonstrates that the company seeks to address employee concerns and work through any unresolved issues. Acknowledging the basis for the delay may also help employees understand why the investigation did not begin sooner. Investigators can help jog employee’s memories of past incidents by providing relevant documents or describing an anecdote that may ring a bell. Investigators can respectfully contact former employees and explain that their former employer values their participation in the investigation, seeks their input, and believes their contributions will assist the company in evaluating the pending complaint. Even if former employees are initially reluctant to get involved and relive the past, they can be persuaded to participate if they understand the purpose is helping a company determine what really happened during a particular incident and addressing possible harm the accuser sustained. Going the extra mile on a stale complaint and trying to gather as much information as possible from employees who were involved in the complained-about incident can ensure that an employer complies with its legal obligations to investigate an employee’s complaint and is committed to addressing past harm and preventing future harm.
Mediation is beneficial even outside of dispute resolution!
As a mediator, I want nothing more than to help willing parties resolve their dispute. But, sometimes, parties are considering mediation (or have been ordered to mediate) even if they aren’t yet ready to hang their boxing gloves up. I highly encourage parties to keep an open mind about the mediation process. Mediation might validate your existing opinions about the strength of your case or the illegitimacy of the other party’s position. However, I can promise that, if you attend mediation with an open mind, you will certainly come away with more information than when you started. In my experience, mediation will not be a waste of your time, even if it doesn’t result in an immediate resolution.
In a recent mediation that (I humbly admit) did not resolve the parties’ outstanding litigation, both sides came to a deeper understanding of the motivation behind the positions held in the other room. Prior to the mediation, both parties thought the other side was arrogant and litigating for the purpose of causing damage to the other party. Each of the attorneys had choice words for their opposing counsel down the hall. By the end of the mediation, there was a softening in each room. Although we could not reach settlement that day, I am confident that both parties, and their lawyers, learned more about the underlying positions of the other side. That knowledge may ultimately assist the parties in either resolving their case sometime before the eve of trial (most likely) or help the parties in preparing for trial. As is my practice, I will continue to follow up with both parties in hopes that a settlement can be reached. After all, with fewer than 10% of civil cases going to trial in Harris County, mediation may be the most productive day you and your client spend during the entire case.
What's Your Summer Reading List?
If you are like me and don’t have a high regard for the Houston heat, summertime is an opportunity to read some books inside with air conditioning and a dog or two nearby. I’m halfway through Never Split the Difference: Negotiating as if your Life Depended On It and it’s a compelling, hard to put down read! Written by a former international hostage negotiator for the FBI, Never Split the Difference is full of author Chris Voss’ fascinating anecdotal stories of negotiating with criminals and international kidnappers. I’m not sure my practice will ever require me to negotiate with terrorists to save lives, but I did find some of the psychology lessons eerily helpful.
Message me and tell me if you have any book recommendations to add to my list!
Do you have a complaint that needs investigating, or a dispute that needs a mediator? Contact Mediation Maven and learn more about our services!