Finding the Facts - Disciplinary and Harassment Investigation

Case Study The complainant, a waitress, alleged she was repeatedly harassed during the lunchtime rush at a restaurant. The complainant further alleged that the harassment occurred during the “constant flow” of waitresses and customers at noontime. The claim was rejected because no individuals came forward to support the allegations, which was unusual given the number of alleged witnesses to the harassment. 144

C. M AKE C ONCLUSIONS OF P OLICY ONLY – I F D IRECTED TO D O S O

It is very important for employers, from the outset of the investigation, to give clear and specific instructions to the investigator about the following:  Whether the investigator should provide conclusions of any kind beyond factual findings;  Whether the investigator should also provide conclusions regarding violations of district policy; There may be very limited circumstances where an district wants the investigator to make legal conclusions, typically in certain specific types of law enforcement investigations. An investigator should never make legal conclusion unless expressly instructed to do so. Investigators should also make sure that they understand their role and the scope of the investigation before starting. If the investigator is unsure, he or she should promptly seek clarification. There are a variety of reasons, it is generally best to instruct the investigator to refrain from making conclusions of policy and almost always detrimental to ask an investigator to make legal conclusions. In particular, if the investigator does not fully understand the district or legal standards, the investigator may make erroneous conclusions about violations of policy or law. The employer will then find itself with an erroneous investigation report that could nonetheless prove extremely damaging at a related trial. As well as being inadvisable, it is generally unnecessary to make legal or policy conclusions in connection with an investigation. It is preferable for the employer to consult with its own legal counsel following an investigation if it’s necessary to make any legal or policy conclusions or to assess whether any laws or policies were violated in assessing discipline, remedial action, potential risks and other factors.

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 72