The U.S. cannabis industry employed roughly 165,000 workers as of last summer. By 2020 that number is expected to jump to 250,000 employees, which is more jobs than the expected jobs from manufacturing, utilities or governments sectors. It is no wonder that we have seen a significant uptick in cannabis industry employment claims over the past year or so in our Washington and Oregon offices. These claims can be very difficult to deal with for a business without basic employment safeguards, like a handbook and conscientious employment practices.
We have written two previous posts in this series on how to protect your marijuana business from the bad acts of your employees. You can find them here (negligent hiring and retention) and here (hostile work environment / harassment). Today, we expand on the latter topic, providing some advice on how to investigate harassment claims.
Ideally, sexual harassment would not occur in any business or professional seeing. Unfortunately, it does, and it is important your cannabis business is ready to properly investigate a sexual harassment claim when it arises. As previously discussed, a proper complaint procedure and investigation is important not only for legal protection against sexual harassment claims, but also to enhance your company’s credibility.
But how should an investigation be completed? While every investigation will be unique given the unique complaints and individuals involved, the procedures outlined below are good starting points to incorporate into your employee handbook and company practices, as appopriate.
An employee may provide either a written or verbal complaint to the person designated in your sexual harassment policy. If the complaint was given verbally, the employer should request a detailed written complaint from the accuser. The complaint should include the name of the employee, the name of the accused, the unwanted actions by the accuser, the date, time and place of the actions, and any witnesses. If the original complaint was written, ensure it includes sufficient details to begin an investigation. A request for additional information should always come with an assurance of confidentiality and that the information will only be used for the purpose of investigating the complaint.
Assign an Investigator
After a complaint is received, an investigator should be assigned. A good investigator will objectively investigate the complaint without bias. Sometimes the investigator can be an existing employee of the company, such as a human resources manager or person previously designated as an investigator of sexual harassment complaints. Sometimes, in smaller cannabis companies, there simply is not an available existing employee that is able to objectively investigate the complaint. When that is the case, a neutral third-party investigator such as an attorney or a human resources specialist should be used. No matter what investigator you use, you must be able to trust their ability to keep the investigation and all employee information confidential.
An investigator should plan on interviewing the accuser, the accused, and any witnesses as soon as possible. Typically the employee should be interviewed first, followed by the accused and witnesses. Interview questions should be planned before the interviews begin and be based on the written complaint. The EEOC provides a list of suggested interview questions (Section V). Interview questions may need to be revised following the interviews and the investigator should be allowed to interview employees multiple times as more information is revealed. The interviewer should record the interviews and draft detailed notes of findings after each interview such as inconsistent statements and credibility.
The investigator should be allowed access to the accuser and the accused’s personnel files. Further, the investigator should obtain any documentation of the harassment from the accuser, accused or witnesses. Examples of documentation may include voicemails, texts, emails, photos, or video surveillance.
Evaluate all the information
The investigator should refrain from making a decision based on any one piece of information. The investigator should evaluate all avilable information once the interviews are completed and all evidence is obtained. The investigator should prepare a written report of findings and whether the accused violated any company policies or committed harassment. The written findings should include support for the conclusions.
Make a Decision
Sometimes the investigator has decision making power for the employer. Other times, for instance, if you hired a third-party investigator, the investigator does not have that power. Regardless, the investigators findings should be used to determine if corrective action is appropriate and if so, what that corrective action should be. Corrective action can include requiring the accused to take training classes, suspension, and even termination.
The investigator’s findings should be shared with both the accuser and the accused. The employer should also follow up with the accuser regarding the investigation process to determine if the accuser felt the investigation was thorough and unbiased. Following up with the employee can provide a couple of benefits. First, if the accuser has remaining concerns, you can address them. Second, feed back from the employee can lead to more thorough investigations later.
Document, Document, Document
The most important part of any sexual harassment investigation is documentation. Every sexual harassment complaint could turn into legal action in court. It is important to document everything in a sexual harassment investigation and complaint procedure. Documentation will provide evidence of the steps taken to investigate and remedy the situation. It will also prove you took the situation seriously and provide a basis for any actions taken as a result of the investigation.