In yesterday’s Advisor, attorney Jodi Katz Pritikin described four of the typical attacks that will be made on your investigations. Today, the other two attacks, plus an introduction to a unique collection of HR policies—on CD and ready to use or customize.
Pritikin, an investigator and seminar leader for Katz Consulting & Associates in Santa Monica California, offered her suggestions at the SHRM Employment Law and Legislative Conference, held recently in Washington, DC.
The ‘Retaliation’ Attack:
‘One of the parties or witnesses was not protected from retaliation during investigations and afterwards.’
Retaliation is its own “complaint” and must be investigated as an independent claim that violates the law and company policy, Pritikin says. Investigators can defend against the “retaliation” attack by:
- Suspending the accused, with pay, when necessary, pending the investigation’s conclusions (ensuring that the accused knows and understands that this is not a disciplinary action)
- Reminding the parties and witnesses during the interview about the company’s policy that prohibits retaliation and ensuring and understanding of the type of conduct that may be construed as retaliation
- Asking parties and witnesses if they fear retaliation or feel they are being retaliated against
- Determining if there was a history of abuse, stalking, threats of violence, damage to property and, if so, taking appropriate security measures
- Having parties and witnesses contact the investigator if they experience retaliation
Even when you are trying to “protect” the complainant, he or she should never be the one sent home, transferred, or suspended pending an investigation because he or she will claim that this was retaliatory punishment for making the claim. If the complainant insists on staying home, get it in writing that he or she is the one who wanted this and that he or she does not consider it retaliation.
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The Burden to Remedy Attack:
‘The employer’s response was not “reasonably calculated” to halt the harassment.’
If you are asked to make conclusions and recommendations for disciplinary actions, remember:
- Remedial actions that may be taken by employers include counseling, written warnings, reprimands, probation, suspension, demotion, a shift in the job duties or job location of the alleged perpetrator, training sessions, and termination
- Remedies should not be pretext to cover-up other wrongdoing.
- The employee should not be terminated for “other wrongdoings” to avoid an internal finding of harassment.
- An employer’s ignoring remedial actions recommended by an investigator can demonstrate a failure to meet the “burden to remedy.”
- Ongoing misconduct demonstrates a failure to meet the “burden to remedy.”
- Damages will accrue from the time of legal notice and are not mitigated unless the harassment stops.
Even when the investigation conclusion does not find that the allegations are valid, it is still acceptable to recommend “refresher training” for the accused. This may not be deemed “remedial” or “disciplinary,” but may ensure that inappropriate or non-managerial conduct does not happen again, says Pritikin.
It’s critical, says Pritikin, to have a policy on investigations. Of course, for any company, there are a lot of critical policies. What about yours? Detailed? Accurate? Up to date? Our editors estimate that for most companies, there are 50 or so policies that need regular updating (or maybe need to be written). It’s easy to let it slide, but you can’t afford to—your policies are your only hope for consistent and compliant management that avoids lawsuits.
Fortunately, BLR’s editors have done most of the work for you in their extraordinary program called SmartPolicies.
Don’t struggle with those policies! We’ve already written them for you, and at less than $1 each. Inspect BLR’s SmartPolicies at no cost or risk.
SmartPolicies’ expert authors have already worked through the critical issues on some 100 policy topics and have prewritten the policies for you.
In all, SmartPolicies contains some 350 policies, arranged alphabetically from absenteeism and blogging to cell phone safety, EEO, voice mail, and workers’ compensation. What’s more, the CD format makes these policies easily customizable. Just add your company specifics or use as is.
Just as important, as regulations and court decisions clarify your responsibilities on workplace issues, the policies are updated—or new ones are added—as needed, every quarter, as a standard part of the program.
SmartPolicies is available to HR Daily Advisor subscribers on a 30-day evaluation basis at no cost or risk … even for return postage. If you’d like to have a look at it, let us know, and we’ll be happy to arrange it.