What to Expect During an Internal Investigation of Workplace Harassment or Retaliation Claims

Employers should respond promptly to all workplace harassment and retaliation claims. This starts with conducting an internal investigation. There are several steps in investigating a claim, and having a plan in place ensures employers can take immediate action when necessary.

Harassment and retaliation claims can pose substantial risks for employers. Not only can these claims lead to financial liability, but they can also lead to reputational harm. As a result, employers need to address these claims promptly and make informed decisions about how to respond.

This starts with conducting an internal investigation.

Conducting an internal investigation when faced with a harassment or retaliation claim serves multiple purposes. Beyond allowing business leaders to make informed decisions, conducting (and thoroughly documenting) an internal investigation can also mitigate employers’ liability exposure in any ensuing EEOC proceedings or litigation. With this in mind, employers should have policies and procedures in place for conducting internal investigations and implement them when necessary.

7 Key Steps for Conducting Effective Internal Investigations

An employer’s policies and procedures for conducting internal investigations in response to harassment and retaliation claims should address all steps in the process. These steps include:

1. Acknowledge Receipt of the Employee’s Claim

Employers should begin by acknowledging receipt of the employee’s claim. Employers should acknowledge that they are conducting an investigation as part of their standard protocols and avoid making any judgments about the veracity of the employee’s harassment or retaliation allegations.

2. Implement a Legal Hold

Since harassment and retaliation claims pose litigation risks, employers facing such claims should promptly implement a legal hold. Implementing a legal hold involves ensuring that all potentially relevant records are preserved. This includes preserving hard-copy and electronic files and communications on-site, off-site, and on employees’ personal devices used for work.

3. Assemble the Investigation Team

After taking the preliminary steps we just discussed, the next step is to assemble the investigation team. Team members may include human resources and compliance officers, IT leaders, in-house and outside legal counsel, and other professionals as necessary. All team members should be able to fulfill their roles efficiently, and no team members should be implicated in the complaining employee’s allegations.

4. Define the Scope of the Investigation and Create a Plan

With an investigation team assembled, the focus should shift to defining the scope of the investigation and developing a plan to move forward. It is important to develop a plan quickly that includes a list of clearly delineated steps to gather the information needed to make an informed, unbiased assessment of the employer’s risk exposure.

5. Review and Catalog Relevant Records

Relevant members of the investigation team—including the employer’s legal counsel—should review and catalog all records that are relevant to the employee’s allegations. Comprehensiveness is key, and employers will generally need to rely on outside counsel to provide the technological tools and resources needed to identify relevant records in a timely manner.

6. Interview Witnesses

Along with reviewing relevant records, interviewing witnesses is a critical component of the investigative process. Employers should work with their counsel to carefully select witnesses to interview, and interviews should be conducted by qualified personnel with a specific focus on gathering information relevant to determining whether the complaining employee is, in fact, a victim of workplace harassment or retaliation.

7. Prepare a Report and Determine Next Steps

After gathering all necessary information, the final step is to prepare a report detailing both the investigative process and the relevant findings. Based on this report, the employer’s leadership team should then make informed decisions about what to do next—including both: (i) how to respond to the employee’s claim; and (ii) whether any internal remedial measures are necessary to prevent similar claims in the future.

FAQs: Investigating Employee Harassment and Retaliation Claims

Can (and should) employers keep the internal investigation process confidential?

Yes, employers can (and should) keep the internal investigation process confidential. All personnel involved in the investigation should be instructed not to share any information about it outside the investigative team.

What should employers do if an internal investigation confirms that an employee experienced workplace harassment or retaliation?

If an internal investigation confirms that the complaining employee is a victim of workplace harassment or retaliation, the employer’s leadership team will need to make informed, strategic decisions about how to proceed. This includes (but is not limited to) deciding whether to offer a confidential settlement to the complaining employee.  

At what stage should employers engage legal counsel?

Employers should engage legal counsel promptly upon receiving a workplace harassment or retaliation claim. From this point forward, an employer’s leadership team should make all pertinent decisions based on legal counsel’s advice, and the employer’s internal investigation should be conducted under legal counsel’s oversight to ensure that all findings are protected by the attorney-client privilege.

How Rendigs Can Help

At Rendigs, our employment lawyers have extensive experience helping employers both develop policies and procedures for conducting internal investigations and investigate workplace harassment and retaliation claims when necessary. Depending on your company’s specific needs, we can:

• Develop custom-tailored policies and procedures for conducting internal investigations
• Provide immediate representation for investigating workplace harassment and retaliation claims
• Assist with evaluating workplace harassment and retaliation claims and determining next steps
• Defend against workplace harassment and retaliation claims in administrative and judicial proceedings
• Assist with implementing new safeguards to mitigate the risk of facing similar claims in the future

If you would like to speak with one of our employment lawyers, please get in touch. Contact us to schedule a confidential consultation today.

Speak with an Employment Lawyer at Rendigs

To schedule a confidential consultation with an employment lawyer at Rendigs, call us at 513-381-9200 or tell us how we can reach you online. We will arrange for you to speak with one of our experienced attorneys as soon as possible.