An employee comes to you or a manager with a harassment claim. What’s the best way make sure that internal complaint doesn’t turn into a court visit?

A solid investigation, says Robert Yonowitz, an attorney with the law firm Fisher and Phillips. Thoroughly investigating the facts and taking appropriate action gives companies an “affirmative defense” and shows the employee — and possibly a judge — that everything was done to diffuse the problem.

However, botched investigations can be costly. Here are seven common mistakes that get companies in trouble:

1. Trying to be “right” instead of “reasonable” — Obviously, the goal of an investigation is to get the facts and find the truth about what happened. But things aren’t always that conclusive, and the courts know it. That’s why companies are normally off the hook if the action they take is reasonable based on the facts they were given.
2. Agreeing to “keep it between you and me” — If a manager gets a complaint, action must be taken — even if the victim asks the manager not to do anything. In a worst case scenario, the employee’s intentionally setting your company up for a lawsuit. Even if that’s not the goal, you’ll still get in trouble if the harassment continues.
3. Promising confidentiality — There’s no way to conduct an investigation while keeping the parties anonymous. It just can’t be done — witnesses and decision makers need to know what’s going on. That said, you should ask witnesses to keep their lips sealed after you interview them.
4. Having one person in charge — One way to avoid complaints of a biased investigation is to have a team in charge — usually HR in tandem with upper management, possibly with an attorney providing guidance. Also, make sure there’s a witness present during interviews.
5. Not getting it in writing — Before asking any questions, have the alleged victim write everything he or she knows about the situation and sign the statement. Same goes for witnesses. That way you have documentation in case people change their stories if they end up in a courtroom.
6. Leading witnesses — Don’t say something like, “We’ve been told Johnny may have sexually harassed Sally — do you know anything about it?” Instead, start out vague: “You’ve been identified as a possible witness to policy violations involving Sally and Johnny. Have you seen anything?” If the answer’s no, make sure you get that in writing. Otherwise, find out what they know.
7. Making legal conclusions — When documenting the conclusions of the investigation, don’t ever write “Johnny sexually harassed Sally” — that’s a conclusion only a judge can make. Instead, write that he broke company policy and list the specific offensive actions.

Tags: complaints, investigation, managers