Pub. 9 2018 Issue 1

Spring 2018 9 West Virginia Banker Kayla Cook and Michael Cardi are attorneys in the Morgantown, West Virginia office of Bowles Rice LLP. They have significant experience assisting employers and institutions of higher education in compliance, policy and investigation. They have conducted dozens of workplace investigations and defended employers in the litigation of harassment and discrimination claims. Ms. Cook can be reached at (304) 285-2565 or by e-mail at kcook@bowlesrice.com. Mr. Cardi can be reached at (304) 285-2561 or by e-mail at mcardi@bowlesrice.com DON’T forget to train employees to follow reporting procedures. All employees and supervisors must be trained to recognize prohibited behavior and to report it. The EEOC will hold the employer responsible if it knew or should have known of the prohibited conduct and failed to do anything to correct or prevent the behavior. DO make an investigation plan. Not all behavior rises to the level of harassment. However, em- ployers should be wary of immediately dismissing allegations that do not initially appear to be harassment. It is not uncom- mon for an investigation to uncover underlying behavior or additional facts that may rise to discrimination or harassment. Similarly, employers should avoid reactively terminating or disciplining someone accused of harassment or discrimination without first conducting a thorough investigation. Creating an investigation plan will help avoid those pitfalls. The plan will help to ensure a thorough investigation and should be modified as necessary during the course of the investigation as new information is received. A good plan organizes the investigation process and establishes a target completion date. Regardless of the complaint, the plan should include interviews with the complainant, the victim (if different from the complainant), the accused and any witness- es or possible witnesses. DON’T be handcuffed by your plan. Good investigation plans are flexible enough to allow the investigator to follow the evidence. You should modify the plan as necessary during the course of the investigation when new information is received; if new allegations are uncovered; or unanticipated further investigation is needed. DO maintain confidentiality – ALWAYS! It is important to keep the investigation as confidential as possible to protect the complainant, the alleged perpetrator and the company. During the interview, an investigator should ask questions that elicit helpful information, but should refrain from disclosing too much information about the case. The integrity of the investigation can be compromised if too much information is disclosed to unnecessary witnesses. DON’T forget to keep parties informed. Many complaints of harassment spin out of control when the complainant or the accused think nothing is being done. Without breaching confidentiality, the investigator must keep the parties apprised of the investigation’s progress. Maintain- ing open lines of communication that set – and keep – realis- tic deadlines in compliance with your policy are critical. DO remain neutral. It is important for the investigator to always remain neutral during the course of the investigation. This can be tricky when the investigator works for the person who is being investigated, or has personal biases that may influence the investigation. Alleged victims and perpetrators may worry that they are not being treated fairly, or that the employer is simply trying to protect itself. To that end, alleged victims and perpetrators should be provided with an equal opportu- nity to speak and present evidence. DON’T be afraid to seek help. There are times when the allegations are best investigated by outside parties. Employers should not hesitate to contact an outside investigator to provide guidance, or to conduct the investigation. If the allegations are severe in nature, or involve supervisors or those in a leadership position, an outside investigator can minimize exposure by helping to ensure a thorough, effective and neutral investigation. DO the right thing. Employers have a duty to prevent the specific incident that gives rise to a harassment complaint and a duty to prevent harassment that may arise from similar circumstances in the future. Even if the investigation shows that harassment did not occur in the specific incident under investigation, the investigation may reveal circumstances that could lead to prohibited behavior in the future. If so, the employer has a duty to take preventative measures. An investigator should be comfortable making recommendations for change. DON’T hesitate to take corrective action. There may be times when interim remedial measures are necessary. Upon receipt of a complaint, be prepared to take action to protect all parties and immediately prevent unwel- come behavior from occurring. These measures can include anything from no-contact directives to administrative leave during the pendency of the investigation. The remedial meas- ures are not and should not be punitive in nature, but should be designed to protect all parties during the investigation. People are our most important natural resource. Creating and maintaining a work environment that is free from harassment not only protects those resources, but allows them to reach their fullest potential. 