An effective employee complaint handling system is an important part of a total EEO compliance program. This memorandum reviews techniques and practices that should be considered when investigating an employee complaint.

The Complaint
The first step in the complaint investigation process is receiving the complaint. Practical considerations include privacy and defamation concerns and whether the complaining employee is willing to go on with an investigation. Sometimes an employee may say that he or she has a problem to discuss but does not wish the confidant to reveal the information to anyone else. Then the recipient of the information has a decision to make.

The recipient can talk with the employee, recognizing that if the recipient wishes to review the matter with anyone else, he may need to obtain permission from the complainant. This course may create a damned if you do - damned if you don't situation for the company.

The recipient can explain that he does not know what the complainant is about to discuss and therefore cannot give a confidentiality guarantee and leave it up to the complainant whether to go on.

The recipient may also say that while he will not agree to total confidentiality, he will reveal the information only to those people in the company whom the recipient believes need to know the information.

Even without the complainant raising the matter, the subject of the complaint should be discussed only with those in the company who need to know.

An additional concern can arise when the complainant reveals information but is reluctant to authorize an investigation. The complainant's concerns in this regard often come from: (1) the complainant being upset and wanting to talk to someone but does not want the alleged wrongdoer to get into any trouble or (2) the complainant being concerned that the alleged wrongdoer will know who complained and will retaliate against or otherwise harm the complainant.

This latter concern is particularly acute when threats or violence are involved. In these circumstances, it generally is desirable to attempt to get the complainant's permission to go on with an investigation. Usually, the company cannot take any preventive, corrective or remedial action without the ability to investigate.

If the employee refuses to authorize an investigation, note this in writing to the complainant along with clear notice of the limitations on the company's ability to respond without an investigation. If a manager receives a complaint and is unsure how to go on, he or she should review the situation with human resources without revealing the identity of the complainant. Human resources should coach the manager on how to encourage the employee to allow additional disclosures or an investigation.

The Investigation
If the complainant agrees to an investigation, the following process may be appropriate.

The person doing the investigation should make an outline of questions to ask the participants in the investigation. The investigator should script out an introduction that gives a generic description of the topic being investigated. This should be done without identifying the complainant or the alleged wrongdoer. The introduction also should explain that the individual being questioned is someone who may have knowledge or information about the investigation and that his or her participation is important. Finally, the introduction should emphasize that the individual should be honest and thorough in his or her answers.

The investigator should start with general and move to specific questions. In addition, where appropriate, the questions should not target anyone as the subject of the investigation or as the complainant. Finally, if specific individuals are identified as witnesses to specific events, these individuals should be asked customized questions to see whether they corroborate the information.

Certain generic questions often are useful, like "Is there anyone else you think I should speak with? " and "Is there anything else you think I should know?"

Sometimes, it may be desirable to close with questions designed to help ensure the reliability of the information provided. Asking people whether they have spoken with anyone else about the investigation, the identity of those people, what they said and whether it influenced the answers the person gave tests the reliability. Another is to ask whether there is any reason for the person's not to be impartial in the investigation, the basis for the partiality and whether it influenced the answers given.

The investigator should script out a brief conclusion. The conclusion should emphasize the need for confidentiality to avoid compromising the process; thank the individual for his or her cooperation; and give the individual a way to reach the investigator if he or she thinks of additional information.

When interviewing the alleged wrongdoer, it is important to emphasize that retaliation or retribution against the complainant is strictly prohibited and that if it occurs, it is a separate infraction.

The investigator must decide whether the investigation should be two on one. There are advantages to a two on one meeting, where two people hear the same information. For example, one person can focus on taking thorough notes. Two memories are better than one and two people can better assess some subjective factors that may speak to witness credibility. Sometimes these advantages are offset by disadvantages, such as possible witness discomfort with two people in the room and therefore may not be as forthcoming with information.

Generally, the investigator should keep accurate and complete notes on all proceedings beginning at the time the interview is done. An actual recording is not usually made unless everyone present at the meeting agrees to the recording and the recording can be made without disrupting the flow of information at the meeting.

The investigation is conducted by a skilled investigator either in human resources or in security. Except in highly unusual circumstances, an attorney should not conduct the investigation. If they do, the attorney becomes a witness and cannot represent the company and the attorney loses distance and impartiality in helping to assess the results of the investigation.

Where the company may face litigation from either the complainant or the alleged wrongdoer, it is desirable to involve an attorney immediately. Additionally, early involvement by counsel can help avoid privacy and defamation problems in the investigation. Specific matters reviewed with an attorney can include reviewing the interview questionnaire, taking notes at the attorney's instruction and reviewing the results of the investigation and the proposed course of action with the attorney.

These precautions may result in documents and discussions having protection as attorney-client privileged documents or work product. Without such protection, the documents become discoverable by the alleged wrongdoer through a request for the personnel file.

In a case involving a potentially violent employee, the company should consider establishing a review committee. Possible participants are legal, human resources, security and medical professionals. The committee's role is to review complaints involving threats or violence, decide when to contact an outside specialist to help assess whether there is a threat and decide an appropriate course of action.

The alleged wrongdoer may be interviewed as the next witness after the complainant, particularly if he is not likely to dispute material facts. This limits what otherwise may be a disruptive investigation. If there are multiple witnesses or the material facts are likely to be disputed it becomes useful to interview them first so all the facts are together to review with the alleged wrongdoer.

Whether the alleged wrongdoer should be on the premises during the investigation depends on several circumstances including the alleged wrongdoer's position; the potential for intimidation or violence, the nature of the accusations, and other factors. Where there are accusations of threats or violence, it is common to suspend the alleged wrongdoer or to place her on a paid or unpaid leave during the investigation.

The review committee should review whether the facts justify reviewing the matter with a psychological expert. These situations often raise additional questions of negligent hire or retention. It may be useful to have the security department check local police records and learn whether the alleged wrongdoer has a permit to carry a weapon.

Direct violence or threats can be addressed through a warning or dismissal, with follow up as appropriate, including notification to security that certain individuals are not allowed on the premises.

Where there is no direct behavior but a real concern remains about a violent outburst, relevant information may be revealed to an outside expert who can decide whether a fitness for duty assessment is necessary or can assess the appropriate way of intervening. In keeping with the ADA and state law, the fitness for duty evaluation would assess whether the alleged wrongdoer can do the essential functions of the job, with or without reasonable accommodation and whether the alleged wrongdoer poses a significant risk of serious injury to the complainant or others. A company's Employee Assistance Program can help decide whether a referral is appropriate or in doing the "fitness for duty" evaluation.

Whenever a complainant believes there is immediate danger, he or she should be encouraged to take appropriate steps to ensure personal safety, including contacting the local police or seeking a restraining order. It is important to explain that the company cannot guarantee his or her safety; that is the responsibility of the complainant. The company should also consider steps, including offering the complainant a transfer to another building/shift/position, providing the complainant with a buzzer to security, an escort at night, or a special telephone line to security.

Conclusion
Investigating is a delicate balancing act. Remember that the receipt of a complaint does not mean wrongdoing has taken place. Decisions cannot be made until the end of the investigation.

Complaints involving possible threats or potential violence can be particularly difficult because often there are no direct threats or physical confrontations. The company is dealing with future potential, which can be difficult to assess and requires careful judgment.