Thoughtful employers also work to address the lingering tensions that can exist post-investigation and stand in the way of restoring a positive work environment.

The Fair Employment and Housing Act (FEHA) requires California employers to conduct a timely, thorough and objective investigation into allegations of discrimination, harassment, retaliation, workplace violence and threats thereof. An employer can fulfill this mandate by conducting, or retaining an independent attorney investigator to conduct, an impartial factfinding inquiry to determine whether the reported conduct occurred, and if so, what factors likely motivated it (e.g., the reporting party’s age, race, gender, sexual orientation, or protected activity, etc.). However, meeting this legal obligation is only the first step. Thoughtful employers also work to address the lingering tensions that can exist post-investigation and stand in the way of restoring a positive work environment.

After an investigation, the employer typically reports the findings to the parties involved and decides what, if any, corrective action should be taken. Because workplace investigations can involve complicated issues and events that people perceive and remember differently, and the findings are often mixed where some allegations are substantiated and others are not, one of the parties, or both, may be dissatisfied with the outcome of the investigation. Yet, the parties must often continue working together, navigating a now fraught relationship. Employees who either participated in the investigation as witnesses or heard rumblings about it through the rumor mill, may be impacted by the noticeable tension between the parties and may feel forced to pick sides. If left unaddressed, these tensions can lead to low morale, distrust of management, lack of faith in the organization as a whole and, ultimately, employee turnover.

A Well-Done Investigation Provides Insight

Attorney investigators who are specifically retained to do impartial factfinding typically do not advise the organization that hired them on what to do as a result of the findings, because the investigator usually does not know how the organization has interpreted and applied disciplinary policies in the past. Also, if the organization fails to follow reasonable recommendations from an independent investigator, that decision may be hard to explain to a judge or jury. However, investigators can provide the employer valuable information about its workplace, including workplace dynamics, common concerns shared by staff, and root causes of conflicts.

For example, while an investigator might not advise an organization on what discipline to issue to a party engaged in wrongdoing, the investigator could tell the organization whether the individual seemed remorseful willing to change, or whether they saw nothing wrong with their behavior and insisted that the reporting party was overreacting. With this information, the employer can decide whether milder solutions such as training, coaching or verbal counseling are warranted or whether more severe discipline is needed. The investigator can also provide insight on the impacts of the wrongdoer’s conduct on other employees, as well as the outcomes and workplace changes those employees hope to see post investigation. Armed with this information, the organization can take practical steps to mitigate fallout among the staff and improve the work environment.

The Good News: Employers Have Many Tools to Choose From

Employers who wish to restore, repair and enhance the work culture after an investigation can choose among many strategies.

• • Provide Mediation/Conflict Resolution
    To help the complainant and respondent realign their working relationship, the organization can offer appropriate conflict resolution tools, such as individual coaching or mediation facilitated by a trained professional, to address the issues and differences that the investigation revealed between the parties. The parties should be encouraged to identify additional support the company can provide to help improve their working relationship with one another and work experience individually. Inviting the parties to report any additional concerns that arise between them and following up with them after some time to see if problems between them have improved, or whether further assistance is needed, demonstrates the organization’s continued support and care for their wellbeing.

• • Be Transparent When You Can
    With regard to other investigation participants who were impacted by the investigation, leading with transparency can be helpful. In most situations, the full investigation report cannot be made public or shared with the parties to the investigation, as employers have a responsibility to maintain confidentiality regarding personnel issues and take steps to avoid retaliation to the parties and witnesses in the investigation. However, under certain circumstances, the organization might consider debriefing the team or department impacted, to acknowledge any tension and disruption the investigation may have caused, and provide support as needed, without identifying the parties or breaching their confidentiality.

• • Climate Surveys Can Provide a Deeper Understanding
    A climate survey conducted by a trained consultant may be needed to gather more details about ongoing employee concerns and help the organization implement effective policy and practice changes. That consultant could also serve, for a limited period of time, as an ombudsperson to whom the staff would be invited to confidentially report and discuss any additional workplace concerns. Engaging a professional who can provide an objective view of employee concerns as well as tailored strategies and recommendations to help the organization meaningfully respond to those concerns can help to mitigate potential problems after an investigation and boost morale.

• • Training May Be Needed
    If the issues raised in the investigation seem prevalent in the workplace, the organization could provide training to the staff to help them better understand and navigate problems in the workplace (e.g. implicit bias, effective communication, conflict resolution trainings).

While not an exhaustive list, implementing these post-investigations practices can help employers communicate to their staff that the company not only takes seriously its legal obligation to investigate complaints but also prioritizes employee wellbeing.

To read the original “Navigating the Aftermath of a Workplace Investigation” article please visit The Recorder website (subscription required).

Reprinted with permission from the July 15, 2024, edition of The Recorder ^© 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.