Boards can help companies recover from disputes among workers.
Boards should be familiar with their companies’ policies concerning workplace investigations, including what happens when allegations are or are not supported by the evidence. Board members can help guide management toward a smooth post-investigation resolution between the involved parties. They can also recommend proactive measures that can lessen the chances of conflict between employees, such as training and team-building activities.
Workplace investigations are an essential tool for managing workplace relationships, gaining insight into potential exposure to liability and taking the pulse of company culture. However, for boards, understanding the factual findings from the investigatory report and determining next steps is a challenge. What if there are no clear policy or legal violations? Is discipline warranted and, if so, to what degree? What should be communicated to the parties while still maintaining confidentiality? These types of questions are common for every company in the aftermath of an investigation.
When Allegations Are Not Supported by the Evidence
In some cases, the evidence is not sufficient to show that misconduct occurred. Other times, the evidence will show that some misconduct occurred, but the conduct does not rise to the level of violating the employer’s policy. In both cases, the temptation is to simply send a closure letter and consider the matter concluded. However, there may still be underlying issues that need to be addressed. The interpersonal issues fueling the complaint are likely to continue after the conclusion of the investigation and may even have been exacerbated by the investigatory process.
In these situations, it’s important that the employee initiating the complaint (the complainant) feel that their concerns were heard, even if there was not sufficient evidence to support their allegations. A conversation initiated by a human resources representative, a department head or a supervisor can go a long way toward accomplishing this goal. Such discussions should be transparent regarding the outcome of the investigation but can also acknowledge the complainant’s strength in coming forward, the seriousness of the complainant’s concerns and the commitment by the company to be mindful of these issues moving forward.
The company may also consider alternative dispute resolution processes. This could include counseling and coaching of the subject of the investigation (the respondent) and mediation between the parties with a third representative. These types of resolutions can help develop soft skills and prevent negative or inappropriate conduct from occurring in the future. Should similar problematic conduct arise again involving the same parties, these measures taken by the company can be noted when considering next steps.
Other non-disciplinary measures may also be effective. For example, an employer may ask the complainant if they would like to be transferred to a different location or put on a hybrid schedule of working remotely to minimize contact with the subject of the complaint. Alternatively, a company might consider whether regularly scheduled check-ins with the complainant may be necessary to monitor retaliation concerns. Again, having a conversation with the complainant at the conclusion of the investigation is critical to mitigate issues in the future.
When Allegations Are Supported by the Evidence
If the investigation finds that the respondent engaged in misconduct alleged by the complainant, typically counseling, training or some form of discipline (such as written reprimands, suspensions, demotions or reductions in pay) is the appropriate course. The resolution in these circumstances will depend on factors like the nature of the offense, the culture of the organization, the employer’s past practice and the respondent’s past discipline history.
The company should follow its past practice of imposing discipline in order to ensure that employees are treated consistently according to the nature of the offense. Also, progressive discipline should be considered when the nature of the offense is relatively minor but often repeated. If the misconduct is particularly severe, egregious or pervasive, then termination may be warranted.
If a company has an organized workforce, be mindful of appeal rights or grievance processes that may have been negotiated. In all cases, the company’s HR staff and/or employment counsel should be consulted to ensure best practices.
Post-Investigation Communication with the Parties
At the conclusion of the investigation, all parties should receive an investigation closure letter, notifying both parties that the investigation has concluded.
If there is a finding of misconduct, the letter may notify the complainant, without disclosing the details, that the investigation concluded that the respondent engaged in misconduct and that the employer will take proper corrective action. The nature of the corrective action is confidential and should not be discussed with the complainant or other witnesses. In addition, the closure letter should reiterate that retaliation is prohibited by all parties.
The company should notify the respondent of any corrective actions to be taken. Depending on the employer’s policies and procedures, this letter may serve as the first formal notification that a respondent violated a policy. Thus, it is recommended that employers consult with HR representatives and legal counsel when drafting closure letters.
Most importantly, closure letters should be timely in order to provide transparency and finality for both parties. Witnesses do not need to be notified of the findings. However, an employer may send a short letter thanking a witness for their cooperation and notifying them that they are protected from retaliation.
Consider Proactive Measures
There are other, more proactive strategies employers may use to foster and cultivate a safe and positive working environment.
A positive work environment is a space that promotes and values employees’ well-being, productivity and ideas. One of the most important tools for creating this type of environment is trainings. Some trainings, such as sexual harassment prevention training, are required by law. However, other trainings related to communication and conflict management are critical as well. Trainings on diversity and inclusion topics, such as implicit biases and microaggressions, can help provide a clearer understanding of how certain workplace behaviors can impact colleagues.
Moreover, team-building activities may help boost morale and encourage connections. Building positive connections among all employees helps create a culture of collaboration where workers at all levels feel like part of a team.
Gorey Ahuja is an associate and Christina Ro-Connolly is a partner at Oppenheimer Investigations Group.