Employee Complaint Investigations: What Human Resources Won't Tell You
Workplace Investigations: Observations From An HR Insider
Are you an employee who has been accused of workplaced wrongdoing? Alternatively, are you thinking about filing a complaint with your HR department or corporate compliance hotline? If so, you may not have a practical understanding of what goes on behind the scenes. This is especially if you have never been involved in an internal complaint investigation.
While all companies have different processes for managing complaints, here is a list of key observations, based on my years as a corporate HR Investigator.
Following the list, I've included specific advice about how to file a complaint against a coworker, customer, vendor, or manager.
What I Will Discuss
- Tips and observations about employee complaint investigations based upon my experience as an investigator in corporate human resources.
- Specific tips for how to file your own complaint against a coworker, customer, vendor, or manager.
- What to do next if your complaint isn't successful the first time.
Highlights of the Employee Complaint Process
- Be clear when describing the issue that prompted your complaint. Human Resources codes each case (discrimination, sexual harassment, etc), and it's important that your case gets the right code so it gets the proper attention.
- If you don't feel you're getting good service from your HR investigator, find out more about them, in a low-profile manner, and document your communications with him/her. With sufficient reason, you may request another investigator.
- Ask upfront for an estimate of how long the case should take to resolve and arrange for periodic updates. If you don't hear anything, check in.
- Watch the tone and content of emails you send to investigators. They are likely keeping records of their communication with you. Be responsive to questions and don't change your story.
- Ask clarifying questions if the company tells you to keep your matter confidential, particularly if you are a nonsupervisory employee. Who are they specifically forbidding you from discussing the matter with? (The National Labor Relations Board has ruled that companies cannot automatically request that employees refrain from discussing the matter with other employees.)
- Keep documents, details, and witnesses to support your claim.
- If you have a lot at risk related to your complaint, consider consulting an attorney.
- Your relationship with the HR investigator is a business one. Treat it as such. They are not there to be your friend.
How the Complaint Process Works
You're in the Database
If you are assigned a case number, your complaint was probably entered into a computer database. The company tracks case details such as name, job title, and contact information for the complainant, Person Complained About (PCA), and any named witnesses.
Additionally, the computer record captures a summary of the allegations you made. It can be pulled up years later. Who can access it now? Well, plenty of interested parties.
Who Is Informed About Your Complaint?
You trust HR to share your complaint with key personnel on only a "need-to-know" basis. But here's the kicker: because executives desperately want to know about compliance and people issues that affect their department, this "need to know" list can become quite extensive.
Too many people may be in the loop when HR is unable to effectively push back against unnecessary requests from nosy executives. Depending on the nature of your complaint and the politics in your organization, the distribution list can include a long list. This includes executives both inside your department and out, plus employees in the Law department, personnel in Audit, Finance, IT, Security, Compliance, and multiple layers of HR. That's a lot of inquiring minds crawling all up in your confidential business!
Who Else Shares Your Complaint Issue?
If only you knew how many complaints mirror your own! The truth is: you're probably not alone, although it can sure feel that way.
HR tracks, counts, and reports on complaint data, and they typically use a labeling scheme to code allegations (e.g., theft, sexual harassment). This permits data analysis on large numbers of complaints. For example, the company may look at trends in the number and types of discrimination cases for this year versus previous years.
Of course, how HR codes your case is important. Hopefully, you were very clear about what issue prompted your complaint. Why is that important?
Why Your Complaint's Code Is Important
In the face of significant pressure from top executives, sometimes HR management re-codes "borderline" cases, so the numbers don't look quite as bad. For example, an allegation of discrimination might become a generic management conduct issue. This is such an ethically slippery slope! And it's how systemic problems are swept under the rug.
Is it Possible to Stay Anonymous?
If you make an anonymous complaint, a good HR Investigator can often logically deduce who you are. That's simply good detective work!
Your Information May Not Be Protected
HR may routinely email detailed investigation reports to one another or executives that are unencrypted and not password protected. That's your information they're handling sloppily.
HR employees may accidentally leave materials on copying machines and printers or displayed on computer screens when they leave their desks "for just a moment." The investigator might even take your case file home. File materials may contain information that is not only personally identifying but also very sensitive, putting you at risk in more than one way.
How Safe Is Your Information?
Executives Are Treated Differently
You suspected this was true. Executives and other special people are often treated differently than you. Their investigations are often faster, more discreet, and more informal.
When they misbehave, their consequences are typically less severe and poorly documented. Even when serious misbehavior is substantiated, they may have a broader range of face-saving options (e.g., early retirement, a mutual resignation agreement). Sadly, instead of holding them to higher standards, HR representatives often do the opposite.
Your Case Will Be Talked About
Your case may be discussed in internal HR team meetings or special meetings with Law, Audit, Compliance, Executives, or others. However, it's not a gossip session; it's a business meeting about your case. There can be a discussion about the facts of your case, findings, and recommended action steps.
What if You Get a Bad Investigator?
There are investigators who are good at their job and others who are not. Your investigator may
- be poorly trained or inexperienced
- have a performance issue himself/herself or
- suffer HR issues of his or her own.
Some companies rotate their HR employees through various HR sub-specialties (e.g., Benefits, Training), and you may have been assigned the new investigator who doesn't know EEO law or company policy very well.
If you don't seem to be getting good service, find out more about the investigator in a low-profile, respectful manner. Also, be sure to document your communications with him or her. With sufficient reason, you might also request another investigator.
What if HR Is Swamped With Complaint Investigations?
There are a number of factors that could affect how long your case takes to be investigated. Case volume tends to peak at certain times (i.e., during performance evaluation season, layoffs, reorganizations).
The investigator may have a huge caseload, may be going on vacation, or may be out sick with no back-up. Such factors will affect the amount of time needed for your case to be resolved. Your case may also be handed off to another investigator.
To avoid surprises, ask upfront for an estimate of how long the case should take to resolve, and arrange for periodic check-ins, as appropriate. If you don't hear anything, check in. Don't assume that no news is good news.
How much do you trust your Human Resources department to resolve employee complaints fairly?
All Communication Is Documented
A good investigator is documenting every key discussion he or she has with you. This includes the conversation date, time, and what was said. It may also include voice mails that were exchanged. Copies of emails and important documents are also kept in the file. Watch the tone and content of the emails you send to investigators!
Who Can You Talk to About Your Case?
When the investigator tells you to keep the investigation matter confidential, it's going to feel like you cannot talk to anyone about this. Maybe he or she even presents you with a company document that directs you to refrain from talking to others about your case.
You may wonder whether you can discuss the matter with your spouse, clergy person, therapist, lawyer, best friend, a coworker who is experiencing the same problem, your union representative, and so forth.
Don't suffer in silence. Know your rights. There are, in fact, people you are legally permitted to discuss your case with and others you cannot.
Ask clarifying questions if the company provides you with such a document or if the investigator makes such a request. Why? In 2015, the National Labor Relations Board (NLRB) ruled that (nonsupervisory) "employees have a ... right to discuss discipline or ongoing disciplinary investigations involving themselves or co-workers" unless there's a substantial business justification. (How else are you going to find out that several other coworkers were also sexually harassed by the same manager?)
Beware of Cubicle Eavesdropping
If you are talking to the investigator via phone, he or she may be sitting in a cubicle or talking to you while using a cell phone in a public location. After all, office space is at a premium. In these cases, others might overhear the details of your conversation, thus fueling the gossip mill. Is that what you want?
How You Communicate with the Investigator Matters
The investigator is evaluating your credibility, and it impacts the outcome of your case. For example:
- Do you change your story?
- Are you responsive to the questions asked, or do you wander off-topic?
- Do you have documents, details, and witnesses to support your assumptions and claims?
Beware of Conflicts of Interest
The investigator might be friends or former colleagues with the person complained about. Check out the investigator's LinkedIn account to see if the two are connected. If you have good reason to believe there may be a relationship that compromises your investigator's neutrality, then consider requesting a new investigator.
A Complainant or Witness Might Receive HR Feedback
On occasion, it becomes apparent that the complainant has a major contributing role in the conflict. In such cases, the complainant may receive feedback (or even discipline) as the case is resolved. Alternatively, during the investigation an unrelated compliance matter could also surface. In cases I have investigated, that has often occurred.
Electronic Eavesdropping Is Possible
Depending on the nature of the case, the investigator may electronically monitor your company email as a part of his or her research. This can be done in real time, and employees typically have no idea it's happening. I know because I've done it.
What Happens if I File Multiple Complaints?
HR often has a short list of employees who repeatedly file complaints—sometimes against the same employee and at other times against lots of different coworkers.
Maybe these folks aren't getting what they need. Maybe they are highly sensitive. Maybe they are abusing the system. Snarky HR investigators may refer to them as "frequent flyers," but each allegation has to be investigated on its own merits.
There's another group of red flag employees who have a history of prior complaints against them, yet they somehow manage to stay employed. Eventually their luck will run out. HR knows that where there is smoke, there is often fire, so do not let this dissuade you from filing a complaint.
HR Is Betting You Won't Contact an Attorney
HR investigates many complaints and trusts that most employees will not go to the trouble or expense of contacting an attorney about their workplace concern. The more you have at risk, however, the more you should consider consulting one. Lawyers do tend to achieve more attention and better results.
What if Nothing Was Done After the Investigation?
If the allegations were substantiated (i.e., found to have merit), you may be told simply that the matter was "handled appropriately." It could appear to you that nothing was done if the PCA wasn't discharged or transferred to a new department.
In fact, there are probably outcomes that you are specifically not told about because of concerns about the other party's privacy. For example: a disciplinary write-up, a reduced performance rating, remedial training, early retirement, a pay cut, demotion, a big promotion denied, or a bonus that was withheld. You may never know exactly what was done to the offender. They have their privacy needs, too.
A Confidential Case Report May Describe Case Details
At the conclusion of your case, the investigator may write a report about your case. A typical report contains background information on the key parties in the complaint, allegations made, steps taken during the investigation, the investigator's evaluative findings, and any actions taken.
In the report, the HR Investigator also frequently documents credibility assessments for key parties in the complaint. You will not typically be granted access to this report, although some states consider investigation records to be part of the employee personnel file and therefore do allow access.
Substantiating a Case Takes More Effort
Let's face it: it's much easier for the HR Investigator if a case has no merit. When a case is substantiated, the investigator must debrief management and agree on discipline and/or remedial action. Then, discipline must be administered and documented. The investigator may even have to present the case to his or her own management and vigorously defend findings and recommended actions, plus seek consult from the Law Department.
This extra work is simply a part of the HR Investigator's job. Appreciate them when you know they've been a conscientious investigator.
HR Is Not There to Be Your Friend
The HR Investigator may come across as neutral, polite, and professional, and you may trust him or her. You may even perceive that you have HR in your corner. However, if you decide to file a complaint with the Equal Employment Opportunity Commission (EEOC) or take other formal action, that same HR Investigator will be helping to respond to your complaint.
In this case, that nice HR person will be helping to defend the company against your claim. Your relationship with the HR Investigator is a business one, so treat it as such.
What to Do Before Filing an Employee Complaint
Against a Coworker, Customer, or Vendor
Against a Manager
1. Name (or list) the offensive behavior(s).
1. Name (or list) the offending behavior(s).
2. Describe how the behaviors impact your work and the business.
2. Review your employer’s policy manual or intranet for the complaint process and specific policies you believe your manager has violated.
3. Describe your attempts to manage the issue yourself.
3. Collect relevant supporting documents and details, including a chronological listing of dates/times/witnesses of the offensive conduct, emails, phone or text messages, etc.
4. Assemble any supporting documents and names of witnesses, in case they are needed.
4. Describe your attempts to manage the issue yourself and the results.
Where and How to Complain
Against a Coworker, Customer, or Vendor
Against a Manager
1. Approach your manager when s/he is relaxed and open.
1. Depending on your company’s specific complaint procedure, you may need to file a grievance with your union, a written complaint with Human Resources, have a verbal discussion with the next layer of management, etc.
2. Clearly and concisely describe the offensive behavior, the impact on your job and the business, and the solution that you seek.
2. Clearly and concisely describe the offensive behavior, the impact on your job and the business, and the solution that you seek.
3. Ask for your manager’s help or advice in solving the problem.
3. Ask about next steps in the complaint process. When the complaint is resolved, agree how and when to check back in with your manager about the outcome effectiveness.
4. Agree how and when to check back in with your manager about the outcome effectiveness.
4. Document your conversation immediately afterwards. What was said? What was agreed to? Who was in the room?
What to Do if Your Complaint Isn't Successful
Against a Coworker, Customer, or Vendor
Against a Manager
1. Check back in with your manager according to the agreed-upon time frame.
1. Review your employer’s policy manual or intranet for the complaint process, paying specific attention to retaliation if you have suffered tangible outcomes for complaining or the offensive behavior has increased in frequency, severity, etc.
2. Briefly recap your complaint and the advice your manager issued.
2. Write a one-page summary of your complaint, unsuccessful attempts at solving the issue, and reiterate the impacts upon your job and the business.
3. Describe the actions taken and the results (i.e., how your work and the business are still being impacted, the offending behaviors have increased in frequency, severity, etc.).
3. Name the policy you believe was violated and the solution that you seek.
4. Ask for your manager’s direction and explore what other steps may be necessary (e.g., involving HR or a higher level of management).
4. Establish an electronic trail by sending this summary via email to the person you originally complained to, and copy Human Resources requesting help.
5. Continue to document key conversations and collect relevant documents. You may eventually need to go higher in the organization or complain to a government agency.
HR Investigation processes differ from company to company. Should you ever need to file an internal employee complaint, this insider's list of observations can help you ask questions, set shared expectations, and understand the potential pitfalls. Good luck in your dealings with HR and others. Above all, remember that in the grand scheme of life, this is a job. Practice good self-care emotionally and physically. You'll get through this.
Questions & Answers
I have gone to HR more than once about my boss berating me through emails and accusing me of something that was not true. I am not the only employee who has complained to HR over this manager. Since this has happened more than once and other people have also complained, HR seems to be doing nothing. Who should I contact about this issue?Helpful 2
- Helpful 7
Can I be suspended for six weeks for an allegation of no call no show?
I assume that you mean suspended without pay.
First, look at the company's disciplinary and attendance policies. Regardless of whether you are salaried or hourly-paid, unionized or not, I would be surprised if six-week suspensions are an option at all. My opinion is that you're in an unemployment no man's land. Although technically you can return to work after six weeks, your employer is betting you will just find another job and not file for unemployment. Most people who work need the money and benefits that come with the job, and that is a long time to be out of work.
The longest disciplinary suspension I've known is one month, else the employee was discharged. Taking such a drastic disciplinary measure of six weeks makes me think it might not have been the first incident for you. (The companies I've dealt with discharge employees for no call/no shows rather than suspend them.) There's a point at which lengthy disciplinary suspension is really unemployment. Therefore, you could try filing for state unemployment ASAP and/or make a complaint to your state's wage and hour division. An attorney is not required to file such a complaint, but an attorney can let you know the merits of your case and your options and thus boost your chance of success.
Second, only you truly know for sure whether you failed to call/failed to show. Companies typically have very specific protocols for calling off work, so it would be very useful to you if you could simply demonstrate compliance with those rules. Your phone records might help as well as who you talked to and any witnesses. If you're in the wrong, a more compelling argument will mix regret with a complaint that the punishment is overly harsh.
Third, if your company has any policy, they need to follow it. It's generally better to have no policy than to have one and not follow it consistently. Therefore, do you know anyone who had a no call/no show with the same circumstances and was treated differently? If so, list these out. Has anyone else at your workplace been suspended this long or are you the only one? Consider whether there might be an underlying motivation of some kind for being so harsh with you.
Fourth, have you already tried to appeal the suspension within the company?
I hope I've given you some ideas. Six weeks seems like pounding a gnat with a hammer, although you certainly need to be more dependable.
What can I do if HR displays favoritism during investigations?
This is a frequent concern. It is in everyone’s best interest, however, that HR does a thorough, unbiased, and neutral investigation, and it is HR’s role to do so. There could be potential legal jeopardy if they do not.
If HR favoritism is what you’re finding, however, then you have some options, but you need to be specific and detailed regarding your allegations of HR bias in investigations. Sorry, but basing it on a “hunch” won’t work. Instead, what specific behaviors or evidence are you basing your claims of bias on? Is the HR investigator a personal friend/social media friend/relative of the complainant? Was the investigation result predetermined without you giving your side (and how do you know that it was predetermined?) Did HR falsify documents?
You can make your complaint at any time
1) before your investigation starts (if there is a glaring conflict of interest, for example)
2) during your investigation (based on intolerable and unprofessional behavior of the investigator), or
3) after your HR investigator has wrapped up his or her investigation.
(Note that doing so after the complaint is decided, however, may make you look like you just didn’t like the result.)
Use your company’s procedures for filing a formal complaint. First take a look at your company’s HR policies to see if they have language that says they will provide a neutral, unbiased investigation (what they were supposed to give you). Reference your HR representative as having violated that policy in your complaint. Then lay out how they violated it.
Typical alternatives for filing a complaint include filing the complaint with your HR investigator’s manager, director, or VP; contacting the employee compliance/complaint line (if your company has one), and complaining through your management chain. Consider doing so in writing so you can document your complaint. HR tends to protect their own. Make sure you indicate that you want to file a formal complaint rather than simply complain.Helpful 1
During a workplace investigation, the HR investigator failed to tell me to refrain from speaking to any coworkers. At the next investigation meeting, I was told sorry, we (HR) forgot to tell you and then noted that I had spoken to 3 coworkers. Is the evidence still usable?
First, shame on the HR rep for not having an introductory script or protocol that checks certain boxes, including a caution about retaliation, refraining from talking to anyone else about the investigation (IF that's appropriate in your case), describing the investigation process for you, etc. At least they were honest and acknowledged not telling you this.
Second, it's important to understand precisely why HR would want employees involved in investigations to avoid discussing the matter with coworkers and others. The purpose is to "seal" an investigation rather than complicate it further by bringing more and more people into it through hearsay, risk witness tampering, destruction and fabrication of evidence, collusion, etc. It's a method of resolving the case most efficiently.
Note, however, that the National Labor Relations Board (NLRB) ruled in 2015 that (nonsupervisory) "employees have a ... right to discuss discipline or ongoing disciplinary investigations involving themselves or co-workers" unless there's a substantial business justification. Thus, I'm not sure whether the issue of confidentiality is appropriate in your case or not. Perhaps some clarifying questions are appropriate, especially since HR forgot to tell you at first. What's their compelling business reason? It cannot be a blanket policy that they require this with all investigations. I hope they have a well thought out rationale specific to your case.
Regarding your question about whether the evidence is still "usable" -- yes. While HR shouldn't punish you for violating confidentiality if they didn't tell you not to talk to coworkers, the workplace is not a courtroom. The warning about confidentiality is not like Miranda rights. There's nothing wrong with the evidence against you unless someone colluded or destroyed evidence. That's a different matter.
Of course, you can always suggest names of coworkers or others as witnesses for an investigation if they have important information to offer. You may also remind the investigator politely that you wouldn't have talked to your coworkers had you known about the requirement for confidentiality.Helpful 4
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