Surviving a workplace complaint
The day arrives when you click on an email to learn you’ve been placed on administrative leave from work. Your heart starts racing. You break out in sweat. Someone has complained about you. About your behavior.
The email is maddeningly vague. It provides no detail about who reported you or how you might have allegedly mistreated them. You are instructed not to conduct any business on behalf of the employer until further notice. You are not to discuss the investigation with anyone. You are not to retaliate against anyone. You will be contacted by an investigator when it is your turn to be interviewed.
And then they send you home. Or they put you in a cubicle somewhere you can’t annoy anyone while you wait to learn your fate.
Being the subject of a workplace investigation can feel unfair, misplaced, retaliatory, and just plain misdirected. It can make people feel like quitting right there and then on the spot. (My two cents: Don't. See it through.) Clients who have been through the process of being investigated talk about the helplessness of having to trust decision makers to know truth from exaggeration or outright fabrication; they don’t fear the process so much as they grow to fear a possible pile-on. It’s a terrible waiting game which can drag on for months, followed by the specter of termination for misconduct – making subsequent employment quite the challenge to secure.
If you are the subject of a workplace investigation, try to remind yourself that it’s not over until it’s over, meaning when your employer has reviewed the factual findings of the investigation and decided a suitable course of action. Outcomes range from termination to finding no misconduct occurred. You could be that person who is completely cleared. You could be that person who receives a written warning and is sent back to work. Being investigated doesn't mean necessarily you're going to lose your job, although it could. It's serious business. As an attorney I can't stop or interfere in the process, but I have found that honest, sometimes painful introspection is the best place to start influencing how you are perceived during the investigatory interview and beyond. It is worthwhile to work with a skilled attorney or therapist, someone with whom you can safely and confidentially discuss behaviors at work you aren’t proud of. We are all deeply flawed, and we’ve all done things we’re uncomfortable thinking about. You may have kept those behaviors compartmentalized, or thought nobody would report you, and it’s important to bring daylight to them, even if only for yourself, so that when you’re asked difficult questions during the investigation you are able to respond with something other than outright flat denial, which is rarely persuasive to an experienced investigator. There’s pretty much always a kernel of truth to an allegation, even if has been embellished or exaggerated beyond recognition. Admit the kernel if you have to, but that’s not really where I’m going. The idea is to familiarize yourself with yourself before talking to the investigator. Because you only get one or two chances to talk to the factfinder.
Think about it this way. Suppose you, like many of us, like to throw in a swear word for emphasis when you’re fired up about something at work, which is every day of the week. Or let’s say you’ve been known to walk out of a room in anger, and you might have slammed your boss’s door a couple of times last week. Just saying it’s possible. Or let’s say there’s one particular subordinate employee who for some reason you just can't stand. You might have been abrupt with that person on occasion -- in a moment of utter frustration you might have talked about wanting to get rid of that employee to someone you shouldn’t have. Upping the stakes here, maybe you make dirty or racist comments even though you know it bothers people. You made a comment about a client, later realizing when you replayed it to yourself, how nasty it really was. Know thyself. Don’t plan on denying what multiple people will attest to. An experienced attorney can help you formulate answers to difficult questions in a way that is both truthful and insightful. To some extent, unless the behavior is so egregious that the employer has to terminate employment, the employer wants to know how much of a future risk the problematic employee might be if kept on. Acknowledging damage and accepting some level of responsibility –- and assuring them they will never receive another complaint -- could be a key component to your future with your employer if you are found to have engaged in misconduct.
There are of course other situations, not addressed here, where it would be absolutely the wrong thing to do to admit anything. If you think it is possible that you are being investigated for criminal conduct, retain criminal defense counsel immediately and ignore this blog.
Following up after you are interviewed. It is somewhat unlikely you will know the precise allegations, although during the investigation interview you’ll be asked questions that will generally inform you about what is alleged to have occurred. In addition to introspection before the investigation, the second bit of wisdom I’ve learned from my clients is that sometimes (but not always) the record needs to be clarified. You should be provided with a recorded copy of your interview, which you might listen to more than once. Hear what was asked, and how you answered. Do you sound evasive to yourself? Defensive? You probably did to the investigator, too. Although you answered “No” to a question, you realize upon rehearing it that if the question had been worded slightly differently, the answer would have been “Yes, I did do that.” Don’t be overly literal. Investigators don’t appreciate it. Working with an attorney, consider drafting a follow-up letter to the investigator, something brief, respectful, and to the point. On the other hand, if the interview went well and you believe your answers were truthful and complete, leave it alone.
Other things to do while you wait. Follow instructions given when you were informed about the allegations, such as not contacting other employees or trying to access the company’s server. Even if you have been separated from the workplace, you can take steps to assert some control over the process:
Request/review your personnel file and make sure the investigator has copies of your excellent performance reviews;
Compile documents that support what you believe your defense will be. As to those documents not in your possession, create a list for the investigator to request from your employer;
Prepare a list of witnesses, if any; people who will provide information counter to the allegations or tending to discredit them. Note: If they are current employees do not contact them, as you’ve been advised not to discuss the investigation with anyone, and that includes your friends at work;
Take an online class or two that is designed to remedy whatever it is you’re accused of;
Familiarize yourself with the process by reading workplace investigation reports available on line;
Get regular exercise, sufficient sleep, maintain a healthy diet, and watch your alcohol/drug intake. The process can be grueling, and it can go on for months before an outcome is known.
If you have been accused of misconduct at work, call me for a confidential consultation. 925-378-3896 or email@example.com. The first conversation is free of charge. Reading this article does not create an attorney-client relationship. Always speak with counsel before doing anything that might impact the outcome of an investigation.