This is the second part of a three-part series exploring workplace retaliations claims. The first article, “Navigating Workplace Retaliation Claims, Part 1: Understanding Retaliation and Preventing It” provides background on what is considered protected activity according to federal and California law, as well as an explanation regarding what might be an employer’s “adverse action” and some best practices for preventing retaliatory activity in the workplace. This article digs deeper into how employers should respond to workplace complaints, managing investigations and avoiding actual or perceived retaliation.
Navigating an Internal Complaint: Immediate Steps
Even with proactive measures in place, employees may still report retaliation. The organization’s response is critical — not only for compliance, but for maintaining trust. Employers should address concerns swiftly, thoughtfully, and transparently to show that they take potential retaliation seriously.
Best Practices for Responding to Complaints
Acknowledge and Document
After receiving a retaliation complaint, employers should promptly acknowledge the complaint has been received and will be addressed.
Initiate a Prompt and Thorough Investigation
Initiating an investigation in a timely manner demonstrates to employees that their concerns are recognized and that reported behaviors will be examined. This process enables employers to gather relevant information while memories are fresh, make informed decisions regarding next steps, and implement measures to support a positive workplace environment.
Conversely, when concerns are not addressed, employees may feel undervalued or question their employer’s commitment to managing future complaints. This perception can result in reluctance to report more serious issues, especially if there is doubt about whether their concerns will receive a meaningful response.
Furthermore, failing to investigate or address a retaliation complaint can be used as evidence of negligence or willful disregard in future litigation or enforcement actions.
Who should investigate?
Most states restrict who can lawfully conduct workplace investigations. In California, for example, only three categories of individuals may serve in this role:
- An employee of the company (often HR or compliance staff, though internal investigators may face real or perceived conflicts of interest).
- A licensed private investigator (regulated under the Business and Professions Code).
- An attorney acting within the scope of providing legal services.
In certain scenarios, it is prudent for organizations to seek the expertise of a third-party investigator to ensure the integrity and impartiality of the process. For example:
- Complaints Involving Senior Leadership or HR Staff: When complaints involve senior leadership or HR personnel, engaging an external investigator can help support greater impartiality and objectivity. Internal teams may have existing relationships or loyalties within the organization that could create actual or perceived biases, making it harder to maintain objectivity.
- Legal Exposure: When allegations present potential litigation risks, attorney investigators with specific employment law expertise are positioned to identify relevant legal issues and prepare reports that assist internal decision-makers in evaluating claims, assessing risks, and determining appropriate next steps.
- Limited Resources or Training: If internal resources lack the training, capacity, or neutrality required for a fair and thorough investigation, bringing in an outside investigator can help support a fair and thorough process and signals the organization’s commitment to impartiality, building trust with stakeholders.
By thoughtfully considering the nature of the complaint and the parties involved, employers can determine whether engaging an outside investigator is the most appropriate and effective course of action.
Handling Cross-Complaints: A Delicate Balancing Act
Cross-complaints — when the subject of an investigation files a counter-complaint — can present unique and complex challenges for employers. While such complaints may be valid, they can also be perceived or experienced as retaliatory, particularly by the original complainant. Mishandling cross-complaints risks both legal exposure and damaging workplace trust. Therefore, it is important to approach these situations with clarity and consistency.
Recognize the Risks of Perceived Retaliation
Even when a cross-complaint raises valid concerns, its timing can fuel suspicion. If the original complainant is suddenly under investigation, others may see it as a punishment for speaking up. This perception alone, regardless of actual intent, can deter future reporting and trigger additional retaliation claims.
- Tip: Document the timing and rationale of the cross-complaint response. Clarify that all concerns, regardless of source, will be assessed on their own merits and emphasize protections against retaliation.
Avoid a “Weaponized” Investigation
Cross-complaints can sometimes be filed strategically to discredit or distract from the original allegations. Employers should be alert to signs of bad faith but must tread carefully. Prejudging the merits of a cross-complaint can expose the employer to claims of partiality or failure to investigate.
- Tip: Consider a “trust but verify” approach by acknowledging the cross-complaint, adhering to standard intake procedures, and consistently monitoring for potential signs of manipulation.
Maintain Consistency in Communications
Ensure that both complainants receive updates, information about anti-retaliation protections, and opportunities to raise concerns. Maintaining consistent communication helps reduce the risk of perceptions of favoritism or unequal treatment.
- Tip: Use neutral and consistent language in written communications with all parties.
Navigating Interpersonal Dynamics During Investigations
Managing interpersonal dynamics during an investigation requires a balanced and thoughtful approach. In certain circumstances, it may be appropriate to limit direct interactions between involved parties to help maintain a safe environment. While such measures are often implemented with the best intentions, they can sometimes be perceived as punitive or as a form of retaliation, particularly if they lead to feelings of isolation or changes in workplace relationships. Striking an appropriate balance involves a careful assessment of the situation.
Employers can support this process by taking proactive steps throughout the investigation and afterwards:
Best Practices for Managing Interpersonal Dynamics During an Investigation
Balance Confidentiality
While absolute secrecy isn’t possible, sharing information should follow a strict need-to-know basis to preserve trust. Protect identities as much as possible, while being transparent about the investigation steps.
Communicate Non-Retaliation Policies
Before interviews begin, communicate to all parties about the procedures in place to address retaliation and what to expect during the investigation. Make it clear that any perceived negative actions toward complainants or witnesses will be reviewed and, if necessary, investigated. Encourage individuals to report any exclusion or adverse treatment confidentially, either to the external investigator or to a designated neutral contact within the organization.
Consider Whether Interim Measures are Appropriate
Employers may determine that interim measures are appropriate, particularly in situations where the alleged conduct is serious. For instance, if the individual being investigated is the complainant’s direct supervisor, consider whether the complainant can temporarily report to someone else during the investigation. Temporarily separating individuals or adjusting work arrangements can reduce tension, but should be communicated carefully to avoid appearing punitive.
Communicating Temporary Measures Without Appearing Punitive
To minimize perceptions of retaliation, communicate clearly that any changes made during the investigation — such as adjustments to reporting lines — are temporary safeguards intended to maintain fairness and minimize stress for all parties and are not indications of any wrongdoing.
Avoiding Over-Isolation and Preserving Inclusion
Isolation, even when unintentional, can erode trust and increase stress for employees involved in investigations. Before excluding someone from meetings or assignments, assess whether complete separation is truly necessary, or if alternatives — such as staggered scheduling, asynchronous workflows, or facilitated check-ins — might address concerns while maintaining professional engagement and connection. When possible, preserving routine work interactions can help reduce tension during the investigation.
Coaching Managers on Consistent and Inclusive Behavior
During an investigation, workplace relationships can become tense, making it even more important for managers and colleagues to remain consistent and professional. Managers may benefit from guidance on maintaining inclusive behavior, avoiding shifts in tone and actions that could be perceived as sidelining, and ensuring equal access to resources.
Avoiding Gossip and Speculation
Conversations about complaints or investigations can undermine the integrity of the process and erode trust within the organization. When employees share rumors or make assumptions about the investigation, it creates a challenging environment, discourages witnesses from participating, and undermines confidentiality.
Employers can help mitigate these risks by clearly communicating that investigations are confidential and that discussing them or spreading information is not appropriate. Limiting the number of individuals with knowledge of the investigation, conducting interviews discreetly, and emphasizing respect and professionalism can help maintain the integrity of the process.
Monitoring and Adjusting in Real Time
Finally, organizations should monitor the social climate during and after the investigation. Pulse checks, anonymous feedback channels, and attention to team dynamics can provide insight into emerging issues and facilitate timely responses.
👈 Missed Part 1? Read it here.
👉 Coming up in Part 3, we’ll discuss post-investigation strategies: how to rebuild trust, restore morale, and avoid repeat issues.
