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How To Properly Conduct and Document a Harassment Investigation

(Note: We published an article by Sharalyn Fichtyl a few months and it was very well received. So naturally we’ve asked her for another. This is an important topic and, sadly, very few dentists know what to do and what not to do when faced with this scenario. Read and learn. —— MG)

Three years as a dental board investigator was an education I’ll never forget. So have the last ten years as a private dental compliance coach and educator. I have so many stories to share with you! For this article, I’m going to tell you how to properly conduct a harassment complaint investigation and how to document it properly as well. This topic reminds me of a manager that worked for a group practice who asked a subordinate if she was going to give up Catholicism for Lent. The employee filed suit for harassment and hostile work environment. She won.

The EEOC says that employers should have the following elements established for harassment complaint and investigation procedures. All of these should be documented in your written Harassment Policy:
1. Assurance that there will be no retaliation against an employee that complains about harassment,
2. A clearly described complaint process that includes avenues to submit a complaint,
3. Assurance that the employer will provide confidentiality to the extent possible,
4. A description of the complaint process; assurance that it’s prompt, thorough and impartial and
5. Assurance that the employer will take immediate corrective action when warranted.

If a lawsuit is ever filed, the court will require you (the employer) to fully disclose the process and results of your investigation. Be prepared to provide copies of your policies, your documentation, and written statements from the accuser, the accused and any witnesses as well as any evidence such as photos, voice mails and emails.

Foundation: Implement Harassment & Disciplinary Policies.

Employee Awareness: Educate them on your policy and complaint procedures upon initial employment.

Reporting Methods: Verbal, written or email. Provide the means in your policy.

Chain of Command: Employees must be able to circumvent their supervisor to report harassment.

Plan the investigation: Is there immediate danger to the safety of employee(s)? Review similar complaints, if any. Review personnel records of both parties.

Safety Measures: It is critical to protect those against safety threats but at the same time be careful not to get retaliatory against any party involved. Safety measures could include instructing the accused to stop the conduct immediately, eliminating the harasser’s authority over the accused, transfer, shift change, administrative leave and other things that may be appropriate depending on the situation. These are not disciplinary actions but are “safety measures” and you better be justified to do any of them. Document it well.

Interview Complainant: Do this within 1-2 days of the complaint. This is a confidential interview. The way in which you conduct this interview and documentation is vitally important. Use a Harassment Incident Report Form and obtain a written statement on an Employee Statement Form.

Interview Accused: Do this within 1 business day of interviewing the complainant. Use an Alleged Harasser Interview Form. The accused is welcome to write their own statement on the Employee Statement Form in addition.

Interview Witnesses: Do this after the complainant and accused have been interviewed. Use a Witness Statement Form.

Review Evidence: Review your interview documentation and obtain as much corroborating evidence as possible. These might include phone records, emails, voicemails, written notes, telephone records, etc. Remember, your job as the investigator is to provide a neutral evaluation of the information you’ve obtained so that you can make a fair and balanced determination.

Complaint Determination: Document your findings (your own notes) and whether or not you believe harassment took place. This will be a summary of your investigation that also includes a chronology of events, comments about evidence, comments about discrepancies and your overall opinion. This is the juncture where you determine whether or not disciplinary action is warranted. If you determine that the complainant was intentionally dishonest in their allegations they should be subject to disciplinary action. If this is ever the case, reasonable steps should be taken to restore the accused reputation if it was damaged by the investigation.

Disciplinary Action: If the complaint turned out to be valid you must take appropriate action without delay. Actions can include immediate termination and/or notification to police for criminal activity if it is of a serious nature. For less serious situations, there may be other measures taken such as suspension, job transfer, verbal/written warning, remedial training, private/public apology to complainant. Disciplinary actions should be document on an Employee Counseling Form. The accused should be informed that cooperation with disciplinary actions are a condition of employment and that failure to do so would result in termination.

Communication: After you’ve made your determination and have chosen the appropriate disciplinary action(s) you need to document them on a Complaint Determination Form and provide each party with a copy.

Record Keeping: All interview notes and forms are NOT to be kept in the employees personnel file. They have to be kept separate, marked CONFIDENTIAL and access limited to a need-to-know basis only.

Follow Up: As the employer, you must watch to make sure retaliation against the complainant or accused is not taking place. A Harassment Incident Follow-Up Form should be filled out within 15 days after complaint determination form has been provided to both parties and then periodically thereafter if you feel it is warranted to do so. The key is to document everything well if you feel the situation is not completely resolved.

Contact [email protected] if you would like her to send you a template for any of the following forms mentioned in this article:

1. Harassment Incident Report Form
2. Employee Statement Form
3. Alleged Harasser Interview Form
4. Witness Statement Form
5. Employee Counseling Form
6. Complaint Determination Form
7. Harassment Incident Follow-Up Form

Sharalyn Fichtl
Dental Quality Assurance, PLLC
[email protected]

Resource: Harassment Investigation Guide; Labor Law Center