Your small corporation has just received a sexual harassment complaint from an employee, and you're not sure how to handle it. After contacting your lawyer, what do you do?

Minneapolis employment attorney Robert Boisvert said the first thing to do is address the importance of conducting a timely investigation of the allegations.

"Most employers will understand they need to investigate and those who don't will usually be persuaded," he said.

Minneapolis employment attorney Natalie Wyatt-Brown agreed that it's sometimes necessary to convince companies that they need to conduct an investigation.

"Employers have a duty to investigate sexual harassment and discrimination complaints whether they think they are going to find something out or not," she said.

Lawyers say that if the employer decides to hire an outside investigator, there are a number of things they can do to make the process as effective as possible, as well as a slew of traps to avoid.

Planning ahead

First, have a thorough discussion with your lawyer about the complaint, how it came to your attention and exactly what the employer knows. Then come up with an investigative plan.

According to investigators, the plan often depends on the individuals involved in the complaint and the extent of the allegations.

A complaint about a hostile working environment will involve a different investigation than a complaint about a single incident, said Fran Sepler, who has been conducting employment investigations for two decades. You really have to adapt your strategy to the nature of the complaint.

While the order in which investigators talk to witnesses varies, in most cases they talk to the person who made the allegations first.

Wyatt-Brown said that when talking with the complainant, be careful to avoid making judgments, for example, that she should have come forward sooner. Sepler added that it's important to avoid telling someone who's upset that if they lie they'll be fired because that will just aggravate the situation.

In some cases Wyatt-Brown will talk to the complainant's co-workers people with knowledge of the working environment before meeting with the complainant or the alleged perpetrator, asking broad rather than specific questions.

"It helps to get a more global picture," she said. "It's a way of getting information without naming the person who complained."

Boisvert said that when talking with witnesses it's often best to begin with general, open-ended inquiries that may elicit more information and are less accusatory, and then work up to more specific ones.

"I think there's an art, much like a trial or a deposition, in an investigation as to how you ask the questions and the order you ask them," he said.

Boisvert advised asking enough questions to create a picture in your mind of what happened. "I want to feel like I was there," he said.

In most cases, investigators talk to the subject of the investigation the accused  near the end.

"That gives me the ability to put things in context when I hear their story," said Minneapolis trial attorney Tammy Pust.

Investigators said that it's critically important to hear the alleged perpetrator's side and to allow him or her to identify potential witnesses.

"It results in a better investigation and it's the right thing to do," Boisvert said.

Investigators said that before all interviews whether it's the complainant, impartial witnesses or the accused they remind the person that the company does not tolerate retaliation and lets them know whom to talk to if they think retaliation is occurring. They also remind witnesses not to discuss the investigation with other employees.

Boisvert strongly advised against promising witnesses confidentiality.

He explained that it's OK to tell them that you'll be discreet and only discuss information with those who need to know, but that you are setting yourself up for a breach of contract claim if you guarantee the conversation will remain confidential.  It's a promise you can't keep, he said.

Practitioners said that in addition to witness interviews it's important to review all documents, workplace policies, employee handbooks and other evidence relevant to the investigation.

"The goal is to conduct a fair, thorough investigation to find out what happened," said Boisvert.

But the investigation can serve other purposes as well.

"My goal is basically to protect the company by finding out not only if the complaint itself is true but if there are any other concerns that the company ought to be dealing with," said Wyatt-Brown.

Pust agreed. "[You want] to provide the employer with a blueprint of what happened so they can judge what needs to happen now to have a productive workplace."

Making the report

Upon completing the investigation, most investigators draft a formal report of their findings.

According to Pust, the memo includes what she did, whom she talked to and a summary of the witness interviews. She also includes a fact-finding section and makes credibility determinations if the employer requests it. She will also make a determination as to what happened.

Boisvert said that he often issues two memos one to the complaining party and one to the accused. The memos are similar, but not identical, he said. Strike a balance between letting the complainant know you took action without going into more detail than necessary, he said.

Boisvert said that in the memos he also reminds the parties that the company does not tolerate retaliation. "That's a nice way to bring closure to the investigation and encourage follow up," he said.

Sepler stressed not allowing the company's decision maker usually a manager with clout guide the result of the investigation. "Be assertive in keeping your distance," she said.

An open mind

When conducting an employment investigation, don't prejudge the allegations or take sides early on, practitioners warned.

"Just ask a lot of questions and don't form any conclusions during the process," said Wyatt-Brown. "Keep an open mind. Often there are a lot of twists and turns during an investigation. Follow the path and be flexible."

Pust stressed that the first thing the investigator is told isn't necessarily what happened, but is instead very likely just a part of what happened. "To the extent you can, leave your prejudices at the door, but bring your wisdom in," she said.

Some investigators make the mistake of automatically gravitating to the employer's side, Sepler said. But their job is only to deliver the facts, whether they are good or bad for the company.

"The goal of the investigation is not to cover up or diminish what's been going on, but to find out so the employer can fix it," she said.

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