A workplace investigator’s role may end upon reaching factual findings, but the work of the investigation should not.  Procedurally, at that point the complaint-handling process is only half done.  Four more stages need to be followed before the matter can be comfortably closed:

• Apply the factual findings to the organization’s policies to reach conclusions;
• Determine what outcomes are appropriate for the parties involved, the work group and the organization as a whole;
• Implement those outcomes; and
• Close out with each of the individuals interviewed.

Apply the Factual Findings to Policies

In the private sector (including not-for-profits), the workplace investigations that organizations conduct usually do not involve making any determinations as to whether conduct was unlawful.  Rather, the focus is on whether the organization’s policies have been violated.  Usually the investigator makes that determination, but in some organizations the question of policy violations falls to the policy owners – typically Employee Relations for employee handbook policies and Compliance or Legal for other regulated areas.  In smaller organizations, those functions are all the responsibility of a single individual; in larger organizations and especially in more regulated industries, those functions may be delegated to separate teams.

Regardless of who has the responsibility in a particular organization, the task of considering the investigator’s factual findings to determine whether any policies have been violated is an essential step in the complaint-handling process.  At times, behaviors may not align with the mission or values of an organization but may not technically violate the provisions of specific handbook policies.  That does not make the behavior appropriate or preclude an organization from addressing it.  Rather, the organization may base its conclusion on language in its Code of Conduct, Mission or Values Statement, or more general principles of fairness and appropriateness.

Determine Outcomes

If one or more people are found to have violated the organization’s policies or behavior expectations, then appropriate action needs to be taken to address that behavior.  “Appropriate action” in the specific context of harassment based on a protected characteristic means that the behavior needs to be stopped and the action needs to deter the offender from engaging in the same or similar behavior in the future.  That is the legal standard, and it is advisable to apply it even for harassing behavior that may not currently rise to the level of a legal violation because allowing the behavior to continue risks creating a future legal issue.  For other types of behaviors, “appropriate action” may include reporting requirements or other legal considerations.

Beyond those legal considerations, organizations that are determining appropriate outcomes may consider a range of factors, including:

• the mindset of the offender – was the violation willful, misguided, or based on misinformation;
• the frequency and severity of the conduct;
• the offender’s overall performance, behavior, and contributions to the organization;
• past precedent – how similar situations have been handled in the past; or
• the offender’s behavior throughout the process – was the individual cooperative, self-aware, defiant, or truthful.

Each situation presents its own considerations, which may drive differences in outcomes.

Even if there was no policy violation, there may be information gathered in the course of an investigation that highlights other actions to be considered.

• Perhaps the complainant needs to be educated on some of the organization’s policies.
• Perhaps the respondent needs training on more effective communications or enhanced management skills.
• Perhaps the entire team needs some more clear guidance or training.
• Perhaps on an organizational level, policies need to be clarified.

This is only a starting point, but it highlights the key consideration – that the assessment of outcomes should extend beyond actions taken toward the subject of a complaint (the “respondent”) who was found to have violated the organization’s policies.

Implement Outcomes

It sounds so simple, and yet implementing outcomes is one of the most common areas of organizational failure in a complaint-handling process.  In larger organizations, the people involved in investigating the complaint and recommending what action should be taken usually are not the same as the people involved in actually implementing those actions.  Even in mid-sized and smaller organizations, there may be a hand-off at this juncture, from the Employee Relations/Compliance function to the line manager, perhaps supported by a Human Resources generalist.

In the hand-off, the corrective action may get stalled.  Scheduling the workplace training may be pushed off.  Multiple approvals may be required on the wording of a warning notice, or identifying and retaining the right trainer may involve an extended review and onboarding process.  Sometimes people just get busy with other things, or there is purposeful avoidance by a manager who disagrees with the outcome or dislikes addressing challenging situations.

Those delays can undo all the well-intended efforts of investigating the complaint.  Behavior that was found in need of correction may persist.  Complainants may become frustrated or angry that nothing was done.  New complaints may arise.  And worst of all from the perspective of the organization, failed implementation is a breeding ground for litigation.

Individuals who do not view the internal process as an effective outlet for resolving their concerns will turn to legal advisors and external remedies.  Organizations are therefore best served by ensuring that the outcomes they recommend be taken are actually implemented.

Remember to Closeout – with Everyone

Finally, either in tandem with the implementation of outcomes or immediately after implementation, the organization should ensure that an appropriate representative closes out with the respective parties.  The respondent(s) should already have been spoken to in the process of implementing remedial or corrective action and informed of the key findings that have led to that action.  A closeout is warranted even if no action is being taken, and the respondent should at least be informed of that, advised that the investigation has been closed, and reminded of the policy against retaliation.  Similarly, the complainant(s) should be told at least at a high level that the investigation has been closed and appropriate action has been taken, thanked for raising the concern, and reassured of the policy against retaliation.

In the closeout meetings with the complainant(s) and respondent(s), it may be helpful for the organization to share some additional information as to particular findings that the investigator reached, essentially the key findings that led to the conclusion that policies were or were not violated.  The purpose of that communication is to share some of the rationale, without thereby reopening the investigation or arguing with either of the parties over findings that were made.

As I outlined in a prior blog post on considering transparency of outcomes, organizations may also want to be more detailed and transparent with the complainant(s) as to the type of corrective action being taken.  Doing so moves from the “trust us” expectation behind the standard statement that “appropriate action is being taken” to more specifically demonstrate that the organization is holding people accountable for their actions and how it is doing so.

Finally, but not to be forgotten, the closeout communications should extend beyond the complainant(s) and respondent(s) to everyone else who was interviewed in the course of the investigation.  Those need not be in-person communications.  An email is sufficient, but it is helpful for individuals who are interviewed to be thanked for their participation, told that the investigation has been concluded and appropriate action is being taken, and reminded of the policy against retaliation – both as reassurance for themselves and a reminder as to how they interact with others who they believe to have been involved in the process.

Why the Broader Closeout is So Important

In my experience as an outside investigator, it is not uncommon for me to meet with an employee in an investigation and be told, “I met with someone like you before.  I told them about this [or some other issue] and I never heard anything.  I assumed no one did anything with it.”  Those comments are a siren call of a missed opportunity for the organization.  An investigation was conducted, findings were reached, corrective action was taken, and because the outcomes are not transparent and no one closed out with the subsidiary people who were interviewed, the employees assumed that nothing had been done.  The lack of communication meant employees lost confidence in a process that had otherwise done everything correctly.

It is for precisely that reason, more than any other, that I encourage organizations to close out with everyone interviewed in a workplace investigation.  Recently, an organization followed that approach and asked me to conduct brief closeout meetings with everyone I had interviewed in an investigation.  The organization had already spoken with the respondent, but not with the other parties who I had interviewed.  Every person I met with expressed appreciation for my follow-up.  They did not necessarily agree with all that I had found, but they did appreciate knowing that something had happened.

The next time you conduct a workplace investigation, remember the closeout – for everyone interviewed.  Make it a regular part of your complaint-handling process.  Let people know that they are being heard and that their perspective is considered.  Doing so will enhance trust in the organization, encourage employees to use the internal process, and provide the organization with greater opportunity to learn of workplace concerns at an earlier stage, when it is still possible to address and resolve the situation.

By Tracey I. Levy