What You Don’t Know Can Hurt You

December 2, 2011

Published by: New Hampshire Business Review

Nancy is Human Resource Manager of a distributor of high end light fixtures. The business has a showroom where interior designers bring clients. There is a warehouse in the back staffed mostly by male employees with one female dispatcher, Lisa, who arranges for deliveries and installation of the fixtures. Nancy comes to work on a Monday morning and learns from the warehouse manager that Lisa did not show up for work. She listens to her voice mail and finds a message from what appears to be an emotional Lisa saying she is “done” and is “not going to take it any more.” She tells Nancy that she will not be returning to work. What should Nancy do?

Tempting as it might be, the last thing Nancy should do is ignore the circumstances of Lisa’s departure. A previously reliable employee failing to show up for work, calling and leaving a message in an emotional state and making statements of the nature Lisa made should send up a number of red flags. When an employee is obviously upset about something related to the workplace, it is incumbent upon the employer to do some investigating.

There are a number of possible explanations for Lisa’s hasty departure from the company, but one might be that she has been subject to some type of illegal discrimination or harassment.  The prudent employer should find out what happened and deal with any possible workplace problems that exist.  Lisa’s behavior and message trigger the need for an investigation.

An internal investigation can be an effective risk management tool for businesses.  Courts and administrative agencies expect employers to conduct effective investigations when complaints of harassment, discrimination, or other misconduct arise.

If investigations are done properly and in a timely manner, they can assist the employer in solving small problems before they become big ones and in avoiding lawsuits.  In the event a lawsuit does occur, the investigation can be a powerful weapon in the employer’s defense against the claims and even limit the potential damages. Moreover, employers which conduct investigations at the appropriate time are able to manage their workplaces more effectively while supporting the morale and productivity of employees.

One of the biggest mistakes an employer can make is not to conduct an investigation because no one made a “formal” complaint or someone made a complaint and asked to keep “confidential.”  Once concerns have been raised over conduct that is potential harassment or discrimination, or otherwise in violation of company policy or a law, the obligation to investigate has been triggered. The employer who fails to take action does so at its own peril.

What if Lisa had been harassed at work and kept it to herself for a long time in order to avoid being viewed by her co-workers as a “troublemaker?” What if Nancy had no idea about what went on the warehouse because she was rarely out there and no one told her what was happening? What if the warehouse manager was aware of the actions of other employees against Lisa but did nothing?  The possibility that this was going on without management’s knowledge is troubling, but it would be even more problematic if no one attempted to find out the reasons for Lisa’s departure.

The first tool for the employer is a clear policy prohibiting workplace discrimination, harassment and other improper behavior such as retaliation or bullying. Putting it in writing, however, is not enough. Employees should be trained to recognize illegal and prohibited behavior, to understand that engaging in it will result in discipline and to know where to go to complain about it. Front line managers should also be trained to know their responsibility to recognize and report improper behavior to human resources.

Even assuming an employer takes these preventative measures, an investigation may be needed. In Lisa’s case, the following steps should be taken:

 1.Nancy should contact Lisa immediately to find out what prompted the message and the departure.

 2.Assuming Lisa discloses some questionable behavior on the part of her co-workers, an investigation should commence. The company might consider encouraging her to reconsider her resignation.

 3.An impartial investigator should be appointed.  In this case, that would probably be Nancy.  However, if there are allegations against a high ranking official or owner of the company, an outside investigator should be considered.

 4.Lisa should be interviewed.  If she isn’t willing, her co-workers, other women in the company and her manager should be interviewed.

 5.Conclusions should be reached and action taken if warranted.

If Lisa chose to bring a lawsuit after her departure claiming she was forced to leave due to harassment or discrimination, the company would be able to argue that measures were taken to ferret out and respond to discrimination. A clear policy, appropriate workplace training and a prompt and thorough investigation would significantly minimize the risk of a bad outcome if a lawsuit were filed. If the company chose to ignore Lisa’s dramatic departure only to learn in the context of a lawsuit that harassment had occurred, the employer would have a far more difficult time defending itself. 

Charla Bizios Stevens is a Director with the McLane Law Firm.   Ms. Bizios Stevens practices in New Hampshire and Massachusetts, concentrating in employment, independent school and health  law. She is available to conduct workplace trainings and internal investigations. She can be reached at 603-628-1363 or at charla.stevens@mclane.com.