A good-faith investigation into claims of misconduct is a valuable tool for employers. It can help employers get to the bottom of a situation and can create a foundation for defending adverse employment action. Failure to conduct a good-faith investigation, on the other hand, can exacerbate a situation and, worse, create unforeseen liability.

Look Into Problems When They Arise

The U.S. Supreme Court's recent decision in Staub v. Proctor Hospital, is a cautionary tale of the trouble employers create for themselves when they fail to investigate. Proctor Hospital employed two managers who were openly hostile towards and about a reservist employee on account of absences caused by his military service. After the COO and VP/HR received complaints about the reservist's attendance, the COO charged the VP/HR and one of the biased managers with “correcting” the attendance problem. Within weeks, the VP/HR terminated the reservist based on a report of misconduct by the biased manager with whom she was supposed to work to correct the problem. The VP/HR also ignored a complaint by the reservist that the corrective action, which led to his termination, was the result of anti-military animus. Had the hospital responsibly investigated and addressed this situation at any of these stages, it would have learned about the anti-military animus underlying the situation and the outcome could have been quite different. As it was, the Supreme Court found a way to hold the hospital liable for adverse actions that were causally connected to the bias of those managers.

Don't Be Afraid to Ask Important Questions

Investigations don't have to be complex, just thorough. I have had many conversations with employers about the need to investigate and I am perpetually amazed by two things: the reluctance of employers to ask questions, and the speed with which they jump to conclusions.

Years ago, a client in the wholesale food industry called. He had videotape of a driver wheeling boxes of food out of the walk-in on a hand truck. By company policy, the driver was not permitted in the walk-in. The employer wanted to fire the driver when he arrived for his next shift. “Have you asked him what he was doing?” I asked. The employer said, “No, but why should I? He isn't allowed in the walk-in.” I recommended that he ask the employee what he was doing and requested that the employer to call me back before he took further action. The employer reluctantly agreed. A little while later, he called back. Sheepishly, he told me the driver had explained that the night supervisor had asked him for help moving food boxes to the loading area, because of a staffing shortage. The night supervisor confirmed the driver's story. A cursory investigation was all it took to avoid a messy situation.

Equip Yourself to Make Informed Decisions

The goal of a good-faith investigation is to learn as much as you can about all of the players, facts and dynamics in a situation before making a decision. Consider this response to a sexual harassment complaint: An employer receives a hostile-environment sexual harassment complaint from a female employee against a male co-worker, alleging that he had made salacious comments to her and had given her a suggestive gift. The employer investigates and promptly confirms the allegations with the complainant's co-workers. The man is terminated without an interview. The woman dies a short time later. The man then files a wrongful termination lawsuit that ultimately reveals significant problems in the employer's investigation: Because the investigator asked the co-workers questions aimed only at confirming the woman's allegations, and did not interview the accused, she did not learn that the accuser and the accused had a long-term, consensual relationship in which they exchanged suggestive comments, cards, and gifts– often initiated by the woman. Had she done so, perhaps neither employee would have been terminated (or both would have for violating company policy), but litigation certainly would have been avoided.

At the end of the day, whether you are addressing a simple misconduct complaint or considering a termination decision, remember: Evaluate the situation broadly and make sure that you understand the characters and the context before you make a decision.

Read Melissa Calhoon Jones' previous column.