The Complaint

How It’s Identified

A traditional complaint is initiated by an employee and made pursuant to an employer policy, such as a workplace harassment or violence policy. Such complaints usually name a specific respondent(s) as the source of the behavior, which is of concern.

Where information comes to the employer’s attention but either the provider of the information is unwilling to attach their name to the complaint, or the source of information is unknown, as, in the case of a rumor or an anonymous complaint, it is very difficult for the employer to follow a traditional investigation process. The traditional process usually involves interviewing the complainant to understand the parameters of the complaint interviewing the respondent and applicable witnesses. When there is no willing complainant or no complainant at all, following this process becomes logistically difficult and results in procedural fairness issues for the respondent.

For the above reasons, we normally recommend that employer clients proceed in an alternate manner when complaints present in any of these forms. Where there is an unwilling or “confidential” complainant, he or she can sometimes be persuaded to “go on the record.” This is often preferable because it then allows the organization to employ a traditional investigation procedure and best ensures fairness and thoroughness for the parties involved.

How Concerning Behaviors Are Noticed

According to the FBI, at least one person noticed a concerning behavior in every active shooter’s life, and on average, people from three different groups, classmates, partners, and family members, noticed the behaviors of the perpetrator prior to each active shooter incident.

Disturbingly, most active shooters displayed multiple concerning behaviors that were left between the active shooter and the person who noticed the behavior, leaving it unreported to law enforcement. The most common response was to report the concerning behavior to the active shooter’s family or a non-law enforcement agency.

How You Have To Respond

Generally speaking, employers must act quickly when in receipt of a complaint of workplace violence. The timing of the commencement of an investigation of the complaint can be critical and may play an important factor in a subsequent determination by a court or tribunal as to whether the employer took adequate steps to investigate. That being said, there is no specific formula for the amount of time within which an employer must commence an investigation into employee misconduct. In moving with haste, employers must primarily keep two things in mind: (1) ensuring that, if the allegations are true, no other employees are subject to the problematic behavior in the time it takes to conclude the investigation, and (2) neither party is prejudiced because of the length of time it takes to conduct the investigation – in other words, protecting against the loss of relevant evidence.

In a perfect world, investigations would be commenced immediately and conducted in a very short period of time. However, there is a multitude of variables that impede an employer’s ability to act quickly and complete an investigation in a timely manner. Investigators often find themselves having to make judgment calls throughout the course of the investigation as to whether a particular delay is justifiable. The investigator is charged with the obligation of being both fair and thorough, and these interests are often competing when it comes to issues of timeliness. The following is a list of possible circumstances which may arise in the course of an investigation, all of which may result in a delay and where such a delay may be justifiable:

• One of the parties commenced a medical leave of absence – this does not necessarily mean that the investigation cannot proceed, but the investigator will need to proceed with care and caution;
• One of the parties wishes to retain counsel – this often takes some time, and if the party wishes their counsel to attend their interview and the employer is prepared to allow this, there is often a delay associated with scheduling a meeting between all attending parties;
• Union/counsel raises issues related to process, such as (i) requests for particulars, (ii) requests for production, (iii) requests for the names of and the evidence provided by witnesses, etc.;
• Timing issues, such as coordinating interviews around vacation schedules and often reasons relevant witnesses may not be in the office; and
• Identification of a computer-complaint or new complainants/respondents.

While the above list is by no means exhaustive, in each of the above cases, the investigator will be called upon to decide whether the delay which may be associated with addressing the issues in question will be justified in the circumstances, taking the need for fairness into account.

Additionally, the complaining employee should be encouraged to detail the allegations in writing. However, an employer cannot ignore its responsibility to investigate a complaint simply because an employee refuses to put anything in writing. Likewise, an employer cannot ignore anonymous complaints of inappropriate workplace behavior.

Reference:

Silver, J., Ph.D., J.D., Simons, A., & Craun, S., Ph.D. (2018, June). A Study of the Pre-Attack Behaviors of Active Shooters [Scholarly project]. Retrieved July 2, 2018, from https://www.fbi.gov/file-repository/pre-attack-behaviors-of-active-shooters-in-us-2000-2013.pdf/view.