The Uncooperative Reporting Party
Nov. 14, 2022
When You Have an Uncooperative Reporting Party
Employers are legally obligated to investigate employee complaints that allege harassment, discrimination, or other workplace misconduct. However, the effectiveness of these investigations depends on the cooperation of the parties involved. So, what recourse does an employer have when the reporting party is uncooperative and unwilling to participate in the investigation?
Workplace investigations Must Proceed Even When the Complainant Declines to Participate.
Investigations into misconduct allegations must proceed even when the reporting party, also called the “complainant,” requests that the employer not delve further into the matter. The investigation process must advance because employers are obliged by law to protect other employees from experiencing similar issues.
Employers and Investigators Must Work Together
When an employee initiates a complaint against an organization but subsequently declines to participate in the investigation, employers and investigators should have the plan to encourage the reporting party to cooperate. It is essential for the employer and the investigator to work together to enlist the reporting party's participation.
Begin with a Plan to Enlist Cooperation from the Reporting Party
Some reporting parties have indicated they would prefer the issues not be escalated because they fear repercussions. In these instances, the investigator should inform the complainant that any retaliation against them for coming forward is unlawful, and if retaliation occurs, they should report it immediately. Other complainants have said that they felt violated by the investigation, and the process was as disturbing as the instance that led to the inquiry. Investigators should always begin the process by attempting to put the complainant at ease and conduct the interview with kindness and compassion. If the reporting party feels safe, this will increase the investigator's chances of getting them to talk freely about the issues they experienced.
Creating a Safe Environment for the Complainant
To increase the effectiveness of the interview, the investigator should consider using the following techniques:
Choose a private, quiet, and neutral location to conduct the interview.
Introduce yourself and explain the purpose of your meeting and the importance of their cooperation.
Explain the company's commitment to complying with the law.
Offer the employee a beverage before you begin.
Attempt to establish a rapport with the employee before asking questions.
Refer to the investigative interview as "a meeting to discuss what happened."
The Role and Responsibilities of the Workplace Investigator
For an organization to position itself from becoming engaged in a lawsuit, employers must take appropriate measures to prevent misconduct in the workplace. When an employee alleges that an instance of misconduct has occurred, the first step is to initiate a prompt and thorough investigation.
The investigator should explain the importance of the reporting party's cooperation.
The investigator should clarify the employer's expectations regarding the investigation. (The company’s rules should be outlined in the employee handbook, and the human resources department may already have signed documentation showing that the reporting party is familiar with the information contained in the handbook.)
The investigator should listen carefully, empathize, and address the employee's concerns about reprisal and retaliation.
The investigator should emphasize that the reporting party's information may prevent misconduct from happening again. This is a strategy that may encourage the reporting party's cooperation.
The investigator will seek to identify the nature of the reporting party's relationships with the employer, supervisors, colleagues, and the other parties involved in the investigation.
The investigator should inform the reporting party that the employer is legally obligated to complete a workplace investigation. The investigation will proceed even if the reporting party declines to participate.
Concluding the Interview
When concluding the interview with the reporting party, the investigator should complete the session by asking open-ended questions. Questions posed in this manner can provide an effective technique for obtaining information that the complainant has not yet disclosed. For example, the investigator could ask:
What outcomes would you like to see as a result of this investigation?
Is there any other information you would like to share about the incident that led to this investigation?
The Benefits of Using a Professional Investigator
· To Conduct a Defensible Investigation
An essential component of the investigator's responsibility is to conduct a defensible investigation that will withstand scrutiny in case a claim is filed. A professional investigator will document their efforts to engage all parties to the investigation and include detailed notes regarding interactions during in-person meetings, telephone conversations, email exchanges, and other communications.
· To Avoid the Appearance of Bias
When a company’s management staff member conducts a workplace misconduct investigation, the business may risk experiencing problems associated with the appearance of bias. To prevent this is always use the services of a professional investigator who can provide you with an unbiased approach and the benefit of their expertise and years of experience.
Consult with the Labor Law Experts at the Lynch Law Firm
An employer's failure to take the necessary steps to prevent workplace discrimination, harassment or retaliation may lead to liability under Title VII of the federal Civil Rights Act of 1964. To implement effective prevention programs, employers should have a complaint procedure that allows employees to feel safe when reporting these issues to company management. Employers should also have protocols to begin the investigation process immediately after an incident. But before conducting a workplace investigation, employers should consult an experienced labor and employment lawyer. The Lynch Law Firm is here to assist you.
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Labor and employment matters arise in all types of industries and in companies of all sizes. The Lynch Law Firm's team of attorneys is equipped with the resources, experience, and knowledge to help you resolve your legal matter. In addition to representing individuals and businesses in various labor and employment matters, we can also assist you in developing employee handbooks, performance evaluation materials, employment contracts, and drafting legal agreements to address issues that include non-disclosure, non-competition, severance, and separation.
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