Employment & Labor Insider

Last week, we talked about employment investigations. This week, I'd like to talk about what employers do with the information they gathered during the investigation. There are two main tasks:

No. 1: Figure out what probably happened.

No. 2: Decide what action to take based on No. 1.

It's almost impossible to generalize about No. 1 because the results will vary wildly based on the results of your interviews and examination of other evidence. But there are five principles that will apply in almost every case.

DETERMINING WHAT HAPPENED: Five Principles

First, you don't have to find the accused employee "guilty beyond a reasonable doubt." That standard applies only when someone is to be convicted of a crime. In the employment context, it is legal to take action against an employee based on much less, including the employer's reasonable belief that the individual committed the offense. Even if that belief turns out to be wrong. (In fact, the employer can even have an unreasonable-but-honest belief that the individual committed the offense, but you'll have a much easier time defending your decision if it's reasonable.)

Second, as you did during the investigation, you want to remain as objective as you can and try to put out of your mind any preconceived notions you may have about the employees involved. Based on the actual evidence you gathered, what do you believe happened? (And it's ok -- indeed, even recommended -- to consult with other appropriate individuals in making that determination.)

Third, at this stage, you can consider credibility of the people you interviewed, including assessments of their eye contact, tone of voice, fidgeting when you asked them key questions, hesitations, changes in story, etc.

Fourth, always document your conclusions and the reasons that you reached them.

Fifth, even if you determine that no disciplinary action is warranted, you should still (1) thank the complaining employee in writing for letting you know about the issue and inviting him or her to come back if there are any other problems, and (2) remind both the accuser and accused in writing of the relevant company policy (for example, the policy against discrimination, harassment, or retaliation). NOTE: If the investigation relates to dishonesty, you may want to skip this to avoid tipping anyone off.

WHAT TO DO ABOUT IT? 14 Questions Employers Should Ask Themselves

All right, so let's say you have concluded, after a thorough investigation and consideration of all the evidence with an open mind, that Johnny "more likely than not" told an inappropriate sexual joke to Lucinda. What are you going to do about it? Here are some questions to ask yourself. Although we're using the example of a sexual harassment case, these same considerations would apply any time you determine what to do about employee misconduct after you have determined that it occurred:

1-Do you have a written policy about making inappropriate jokes, or a policy prohibiting sexual harassment in general? Has it been communicated to employees, and, specifically, to Johnny? Can you prove that? Does the policy say what you will do in these circumstances?

2-What is Johnny's position in the company? Is he Lucinda's co-worker, or is he the CEO? (Tip: The CEO should be held to a higher standard of behavior than a rank-and-file employee or a lower-level member of management.)

3-Is Lucinda's rank in the company roughly the same as Johnny's, or does he have authority over her? (The greater the power disparity, the more serious the infraction.)

4-Has Johnny done this before, either with Lucinda or with other employees? Has he been disciplined for it, or warned, in the past?

5-Did Lucinda behave in a way that could have given Johnny reason to believe that she would not be offended by the joke? (For example, did she tell similar jokes or even worse ones? Were they having an intimate relationship? Were they best friends?)

6-How would Lucinda like to see you handle this situation? You don't necessarily have to do what she wants -- especially if she asks you not to do anything about it -- but it is always a good idea to at least ask and to give due consideration to her preference.

7-Was Johnny truthful and forthcoming during the investigation? Did he show genuine remorse for his behavior and a desire to do better in the future? Or was he a secretive, unrepentant liar?

8-Did Johnny retaliate in any way against Lucinda (or whoever reported his behavior)?

9-What is Johnny's overall work and disciplinary record? Is this a first offense, or the last straw?

10-Have other employees been caught telling inappropriate sexual jokes at work? If so, what action was taken against them? If you want to treat Johnny differently (either more harshly or more leniently), do you have a legitimate basis for doing so? Can you prove that? Could treating Johnny differently from "similarly situated" employees raise any other issues, such as race or age discrimination?

11-From a pure "gut" standpoint, does your proposed action seem fair and just? Do you think it would appear that way to a third party? Specifically, do you think it would appear fair and just to an EEOC investigator, a judge, or a jury of Johnny's or Lucinda's peers?

(And, for future reference . . .)

12-Did your investigation reveal that other employees engaged in similar behavior and were not disciplined for it? If so, you need to address that now -- either through disciplinary action or training, or both.

13-Did your investigation reveal that your policy could use some improvement? Fix it now, while it's still on your mind. (But don't apply the "new and improved" version retroactively.)

14-Did your investigation reveal that you hadn't had harassment training since it first became illegal in the 1980s? If so, schedule it now!