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…..click here to read the full article on SHRM’s website.