3 Rules of Thumb When Investigating Bullying in the Workplace

Whatever the outcome, one thing is certain: Richie Incognito’s alleged abuse of fellow Miami Dolphin Jonathan Martin has lifted the curtain on bullying and intimidation in the workplace. And on an employer’s obligation to stop it. From attorneys at Hopkins & Carley:

For employers, the lessons of the Jonathan Martin case are simple and clear. All employers and their managers are responsible for taking reasonable steps to prevent discrimination and harassment in the workplace. No employers, including professional sports teams, are exempt from the law, and industry culture or practice does not excuse behavior that would be clearly unacceptable in most business settings. When harassment occurs, particularly on a widespread, ongoing basis, those who engage in the behavior, and management which is ignorant or tolerant of it, are to blame.

That means, among other things, thoroughly investigating employee claims of harassment. Three rules of thumb for doing it right, from attorneys writing on JD Supra:

1.       Document everything. Everything:

“… it is advisable to document the investigation process, such as when the complaint came to the employer’s attention, who was interviewed, what was disclosed, what remedial action was taken, and why it was taken. The investigation notes should be taken contemporaneously with, or soon after, each witness interview to ensure accuracy. Documentation is important because the employer may be required to demonstrate when and how it investigated the employee’s complaint in subsequent litigation.” (Tiffani McDonough of Obermayer)

2.       You may want to bring in outside help:

“In many instances, a fresh perspective is helpful. […] Outside investigators often have experience in handling difficult cases, including cases that involve employees at the upper levels of the organization. […] The use of an outside investigator may strengthen the appearance of impartiality.” (Adam Santucci of McNees Wallace & Nurick)

3.       You must take action after concluding the investigation:

“At the conclusion of the witness interviews, the employer must make a determination as to whether actionable harassment has occurred. […] If the investigation establishes that the employee’s allegations have merit and the employee was subject to bullying because of the employee’s membership in a protected class, the employer must determine the most appropriate level of discipline. […] If the allegations are disproven by the investigation, the employer should communicate the results of the investigation to the complaining employee, but should not penalize the employee for the complaint.” (Tiffani McDonough of Obermayer)

The updates:

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