What you need to know and do.
By Alexandra Walsh
Internal investigations of bullying are on the rise at companies across the country.
According to a survey from the Workplace Bullying Institute, at least 13% of U.S. adults in 2021 said they experienced bullying at work in the last year, and another 17% said they had been bullied during their career.
The reasons for the rise in bullying investigations are complex. On one hand, a lot of different views are represented in our society, and in recent years, this has resulted in more divisiveness.
There is little doubt recent political divisions in the country have also contributed to more complaints and investigations about bullying and harassment at work. At the same time, many companies have enacted a zero-tolerance policy for bad behavior, and companies are not in a position to ignore problems brought to their attention.
Unfortunately, adopting zero tolerance in a company already with a history of bullying is doomed to be ineffective, according to the Workplace Bullying Institute. Individuals must unlearn behaviors they have been practicing for years.
To bring this about requires training, coaching, and a management that is engaged and fully understands the nuances of workplace bullying. Offenders should be given a chance to try, to fail, and to do it right the next time. Learning requires patience. The heavy-handedness of zero tolerance can crush employee morale and could lead to the exit of the most talented employees.
What It Is and Is Not
It is important that business owners and management understand the difference between bullying and harassment. Bullying can create problems for workforce morale, retention, and productivity, but it’s not necessarily against the law. There is no legal definition of bullying. Employers don’t have a legal obligation to investigate bullying.
For legal purposes, harassment and claims of a toxic work environment must be based on a person’s protected status such as race, sex, age, or disability. Rude conduct or bullying is not illegal unless it rises to the level of harassment based on a protected status. A person’s political affiliation is not a protected status under federal law.
In some cases, bullying or harassment may have occurred simultaneously with other conduct that is being investigated such as theft, fraud, or drug use in the workplace.
Sometimes those making a complaint do not use the word bullying, but the behavior they describe is. It is not unusual for bullying to be an issue tacked on with whatever else is in the complaint.
Bullying could be mean or hateful speech, but it could also include passive-aggressive behavior like excluding, ignoring, or withholding information from someone.
Some employees think incorrectly they can say anything at work because they have constitutional free speech rights. But there is no legal protection of free speech rights in the workplace in the private sector. Employers can enforce an anti-discrimination policy and a code of conduct that requires employees to be professional and to never use offensive or hateful language.
When management receives a complaint about an employee bullying or harassing others in the workplace, a well-run internal investigation can help stop the problem. An internal investigation can uncover whether an employee’s conduct violated any corporate policies, or whether it was merely rude and unkind.
Selecting the Investigator
The appropriate person to investigate a complaint should possess all the following:
- An ability to investigate objectively without any bias
- No stake in the outcome, no personal relationship with involved parties, and no effect on their position by the outcome
- Prior investigative knowledge and working knowledge of employment laws
- Strong interpersonal skills to build a rapport with parties involved and to be perceived as neutral and fair
- Attention to detail
- The right temperament to conduct interviews.
The investigator should be able to maintain confidentiality, be respected within the company, possess the ability to act as a credible witness, and have the likelihood of continued employment with the company. All of these add to selecting the right person to investigate because his or her conclusions will be used to make a determination.
Employers generally use the resources of experienced HR professionals if the business has an HR staff, legal counsel, or a third-party investigator.
Conducting an Investigation
Once the appropriate investigator has been selected, they should inform all parties involved of the need for an investigation and explain the investigation process.
Caution should be used when stressing confidentiality of the investigation process as this can be seen as interfering with employees’ rights to engage in concerted activity under the National Labor Relations Act.
The investigator should focus on being impartial and objective to gather and consider relevant facts. Prevention from pushing the investigation in any particular direction is imperative. The investigator should never offer any opinion or say anything to employees being interviewed that will discredit the investigator’s impartiality. Objectivity must be maintained with every interview.
Taking notes, looking for inconsistencies, and seeking opportunities for more evidence and names of other potential witnesses should be a consideration as well. Asking the employee to write down what happened may help find inconsistencies. There may be a disparity between what the employee is willing to write and what they said in the interview.
Investigators must determine employees’ credibility. Interviews can provide differing accounts and even conflicting versions of events. Be aware that the issue is personal to the employees involved. Because of the personal and emotional nature of the issue, their individual perceptions of what happened may be clouded by personal interests, or if their jobs are on the line, they may even lie.
Investigators must consider the credibility of the individuals being questioned during an investigation and consider factors such as plausibility, ability, demeanor, motive, motive to falsify, corroboration, past behavior, and past accusations in assessing credibility.
Investigators should be cautious when conducting interviews to avoid any harsh interrogation tactics that could result in charges such as coerced false confessions and false imprisonment.
Making a Decision
The investigator must be careful not to jump to any conclusions before all the facts are available. Once the interviews are conducted, other necessary procedures such as collecting evidence should be completed. Once any credibility issues have been resolved, the investigator will evaluate all the information for making a formal recommendation.
The investigator and the business owner, as well as legal counsel, should make the final determination of any employment actions that are warranted based on the investigative report. The employer must consider all the parties involved as well as the company’s processes—not just whether the accused is guilty—in the final determination.
Sometimes when an internal investigation isn’t legally required, other alternatives might be effective. For example, the business owner could conduct a workplace culture survey, provide training to employees and managers, or facilitate open discussions about an issue that came up.
According to the Workplace Bullying Institute, when asked to recall the worst case of repeated mistreatment at work, 11% of respondents said it stopped because the perpetrator was disciplined, while 9% said it stopped because the perpetrator was fired, and 3% said it stopped because the perpetrator voluntarily quit, The remainder said the target of the bullying quit, was fired, or transferred to a different job or location with the same employer.