I have thus far considered eight investigation scenarios in this series, in each post focusing on a particular witness scenario that reflects things that employers see in workplace investigations. The eight employees who have been the focus of the previous posts have something in common – they are all current employees of the company. But not infrequently management learns of a workplace concern when an employee is exiting the company.
This “parting shot” complaint can be from an employee exiting voluntarily or involuntarily. It might relate to harassment, workplace safety, or various other workplace issues. The departing employee might report that he/she made others in the organization aware of the concerns, but in this post we are assuming that you – whether HR, legal counsel, or other management – for whatever reason have not previously been notified of the concerns. (Because, as readers of this website, you will undoubtedly have already taken appropriate action and either found that the concerns were unfounded, or acted to address them.) To the extent that the employee is being involuntarily terminated, here we are assuming the reasons of record and any reasons known to you are unrelated to the workplace concerns being complained of.
The employee is gone – do we need to investigate?
In short, yes. As with virtually any workplace complaint, gathering the facts and taking appropriate action (if any) in response to your findings is advisable for liability avoidance, and also just good management. A full-blown investigation with statements and lawyers is not always needed, but it is rarely wise to simply “punt” on any workplace complaint.
In this scenario, there are at least three good reasons to investigate in order to minimize the company’s liability.
- The fact that the complaining employee is leaving may eliminate some potential liability in that the employee is no longer in a liability-creating situation. For example, to the extent there is a hostile work environment towards women and the employee resigned to take another position, by all appearances she has voluntarily removed herself from the situation before the company had any opportunity to do anything about it. But regardless of the circumstances, the employee feels that she has been wronged, or she would not have raised the concern. Therefore, there is some risk that it will become a legal claim of some sort. This is particularly true of course in the case of an involuntary departure. The company needs to gather the facts to be in the best position to defend itself later against any such claim.
- Just as important, the company has obligations to the remaining employees. If there is a hostile environment or a safety issue, even if the complainant is no longer exposed to that issue, remaining employees are still working in the reported situation. If one of those employees raises a concern later and the company had prior notice of the issue and failed to act, the company’s exposure is much greater for not having acted on the first report – often a perceived “cover up” is viewed much more negatively than the wrong itself.
- Finally, even in legal matters relating to other concerns, it can be helpful for the company to demonstrate a culture of compliance and concern. Likewise, while defense lawyers will certainly work to keep seemingly unrelated issues out of any lawsuit, it is possible that inaction by the same actors in other settings would come to light in other cases and be harmful to the company.
Should you put the brakes on the resignation or termination in light of the complaints?
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- Any suggestion that the real reason for a termination is related to the concerns expressed. For example, if the employee suggests that a supervisor has trumped up performance concerns in retaliation for the employee rejecting his romantic advances.
- In a resignation, any suggestion that the resignation is to escape the complained of circumstances. An employee leaving without another job lined up and no explanation for that (such as a family reason) is also more of a red flag than a “by the way” report by an employee leaving for a better career opportunity.
- The more severe the complained of circumstances, the more likely it would be advisable to hit “pause” in some fashion until you can better evaluate the situation. In a termination, the company might place the employee on unpaid leave for a brief period of time. In a resignation, the company might advise the employee that, in light of the concerns, it is not accepting the resignation until it can follow up on the concerns. These measures need not cost the company anything or prejudice its ability to ultimately move forward on a well-founded termination, but will enable the company to demonstrate in future legal proceedings that it took the concerns seriously.
How do you follow up with the departing employee?
When an employee is gone, your ability to involve him/her in an investigation is much more limited than when they are on your payroll. Sometimes employees are sincere in just wanting the company to be aware of the concerns, but wish to move on and not be involved. Your ability to compel cooperation is limited, and that in turn can limit your ability to effectively investigate the concerns. But be sure that your file reflects your attempts to reach the employee, and certainly communicate to the employee that the company takes the concerns seriously and, in order to best address them, needs the employee’s cooperation.
In short, you want any future jury to view you as having done what you reasonably could to address concerns.
Should you communicate your findings to the departed employee?
It depends. With a current employee, with few exceptions it will be advisable to communicate in some fashion the findings of the company’s investigation into concerns expressed by the employee as well as the action steps intended to address the concerns. Looking at the three reasons noted above for following up, it is possible to position the company well to address each of those concerns without following up the employee. Liability to that employee is in effect “capped” at the time the employee departed. But, depending on the situation, particularly if you fear the departed employee may be litigious, some follow-up communication may be warranted.
Parting shots are often tricky because they introduce a major moving part that is not present in most employee complaints. Most principles of sound investigations apply in these scenarios, and employers need to resist any temptation to view the departure as solving the problem and getting the company off the hook for what may be a liability-creating situation.