?When HR receives a complaint about an employee bullying or harassing others in the workplace, a well-run internal investigation can help stop the problem.
With more employees required to return to the workplace instead of working remotely, there have been more complaints and investigations about bullying and harassment in the last year or two, said Julie Pate, an attorney and president of Employment Compliance Solutions in Broomfield, Colo.
Fierce political divisions in the country also have contributed to more complaints and investigations about bullying and harassment at work. With a presidential election next year, bullying could get worse “because people are talking about [political subjects] more at work,” Pate said. Our workforce over the last five years has “gotten to the place where people are very divisive with each other. There is a lot of that divisiveness happening in our society with different views.”
Sabina Menschel, CEO of global investigations firm Nardello & Co. in Washington, D.C., confirmed internal investigations of bullying are on the rise. “There really seems to be a zero-tolerance policy at companies for bad behavior more generally, and companies are not in a position to ignore problems brought to their attention,” she said.
In 2021, at least 13 percent of U.S. adults said they have experienced bullying at work in the last year, and another 17 percent said they had been bullied during their career, but not in the last year, according to a survey from the Workplace Bullying Institute in Clarkston, Wash.
Legal Questions
It’s important for HR professionals to understand the difference between harassment and bullying. Bullying can be problematic for workforce morale, retention and productivity, but it’s not necessarily against the law. Employers “don’t have a legal obligation to investigate bullying. There’s no legal definition of bullying,” Pate said.
For legal purposes, harassment and toxic work environment claims must be based on a person’s protected status, like race, sex, age or disability. Rude conduct or bullying isn’t illegal unless it rises to the level of harassment based on a protected status. Political affiliation is not a protected status under federal law.
In some cases, bullying or harassment may have happened simultaneously with other conduct that’s being investigated, such as theft, fraud or drug use in the workplace.
“Sometimes complainants don’t use the word bullying, but the behavior they describe is. It’s often one of the adjunct issues along with whatever else is in the complaint,” said Elaine Blackwood, an attorney and president of Richwood Consulting Group, a New York City consultancy focused on workplace investigations and legal compliance.
Bullying could be mean or hateful speech, but it also could include passive-aggressive behavior like excluding, ignoring or withholding information from someone.
Some employees incorrectly think they can say anything at work because they have constitutional free speech rights. But there’s no legal protection of free speech rights in the workplace in the private sector, Pate said. Employers can enforce an anti-discrimination policy and a code of conduct that requires employees to be professional and never use offensive or hateful language. An internal investigation can uncover whether an employee’s conduct violated any corporate policies, or whether it was merely rude and unkind.
Tips for Better Investigations
To conduct effective internal workplace investigations, the first step is to pick an investigator who’s impartial and qualified to manage the investigation, Pate said. In some cases, that might mean hiring an external third party for such purposes.
The next step is to “be clear about the scope of what you’re investigating” Pate said. Otherwise, the investigation could take more time and money than the employer is willing to invest.
During the investigation, you should reassure the complainant and witnesses that the proceedings are confidential, without guaranteeing complete confidentiality, and that there won’t be retaliation against the complainant or witnesses, Pate said.
Cheryl Orr, an attorney with Faegre Drinker in San Francisco, recommend asking open-ended questions and being as discrete as possible to protect everyone’s privacy. Remember that whatever you write down “could be produced in litigation, so make sure it’s accurate,” she said.
Sometimes, if an internal investigation isn’t legally required, other alternatives might be effective, Pate said. For example, an employer could disseminate a workplace culture survey, provide training to employees and managers, or facilitate open discussions about an issue that came up.
When asked to recall the worst case of repeated mistreatment at work, 11 percent of respondents said it stopped because the perpetrator was disciplined, while 9 percent said it stopped because the perpetrator was fired, and 3 percent said it stopped because the perpetrator voluntarily quit, according to the Workplace Bullying Institute. The remainder said the target of the bullying quit, was fired, or transferred to a different job or location with the same employer.
Having corporate leaders who don’t treat their subordinates well, or don’t hold managers accountable when they bully people, means the problem is likely to persist. “It really comes down to leadership at the top of the organization,” Pate said. “People are going to emulate what they see every day.”