An Employee Just Filed an HR Complaint. The Next 48 Hours Will Define Your Exposure.

It happens on a Tuesday afternoon. An employee — or their attorney — sends a complaint. Harassment. Discrimination. Retaliation. The details are serious, or they are vague, or they are both at once.

What you do in the next 48 hours will define your legal exposure for everything that follows.

I have represented employers in hundreds of HR matters. I have also represented employees who filed complaints against employers. That dual-side experience has given me a clear picture of what employers do right — and what they do catastrophically wrong — in the first 48 hours after a complaint arrives.

The Four Most Common Mistakes

1. Delay

The most common mistake is waiting. Waiting to see if it blows over. Waiting to consult with HR. Waiting to talk to the accused. Waiting to call an attorney.

New Jersey courts and the EEOC expect employers to take prompt corrective action when they receive a harassment or discrimination complaint. “Prompt” means days, not weeks. Every day of delay is a day that can be used against you in subsequent litigation.

2. Talking to the Wrong People

The second most common mistake is involving people who should not be involved. The accused's supervisor. The accused's friends at the company. The owner's spouse. The company's general counsel who also represents the accused personally.

Every person you involve in the complaint process is a potential witness. Every conversation you have about the complaint is a potential exhibit. The investigation must be conducted by someone who is — and appears to be — impartial.

3. Documenting Incorrectly

Documentation errors come in two forms: documenting too little (failing to create a record of what was done and why) and documenting too much (creating written communications that will be discoverable and damaging).

The rule is simple: document the process, not the conclusions. Document that the complaint was received, that an investigation was initiated, that specific witnesses were interviewed, and that specific documents were reviewed. Do not document your preliminary conclusions, your opinions about the credibility of the parties, or your assessment of the company's exposure.

4. Retaliating — Even Accidentally

The fourth mistake is the most expensive: taking any adverse action against the complaining employee — or anyone associated with the complaint — before the investigation is complete.

Retaliation does not have to be intentional to be illegal. Changing the complaining employee's schedule, excluding them from meetings, giving them a negative performance review, or even being cold to them in the hallway can all be characterized as retaliation. The safest approach is to treat the complaining employee exactly as you would have treated them before the complaint was filed — until the investigation is complete.

What to Do in the First 48 Hours

• Call an attorney immediately. Before you respond to the complaint, before you talk to the accused, before you do anything — call an attorney who handles employment matters. The decisions made in the first 48 hours are the hardest to undo.
• Preserve all relevant documents. Issue a litigation hold immediately. Emails, texts, performance reviews, scheduling records, and any other documents related to the complaint or the parties involved must be preserved.
• Separate the parties if necessary. If the complaint involves ongoing contact between the complainant and the accused, consider whether a temporary separation is appropriate — without taking adverse action against either party.
• Identify the investigator. The investigation should be conducted by someone who is impartial — ideally outside counsel or an independent HR professional. If the complaint involves senior management, internal HR may not be appropriate.
• Do not interview the accused yet. The investigation should begin with the complainant and neutral witnesses. Interviewing the accused too early — before you understand the full scope of the complaint — can compromise the investigation.

Why the Investigation Is the Case

In employment litigation, the investigation is often more important than the underlying facts. A thorough, impartial, well-documented investigation can defeat a claim even when the underlying conduct was serious. A sloppy, biased, or incomplete investigation can create liability even when the underlying conduct was not illegal.

I have seen employers lose cases they should have won because the investigation was conducted by someone with a conflict of interest, because key witnesses were not interviewed, or because the conclusions were reached before the evidence was gathered. I have also seen employers win cases with serious underlying facts because the investigation was conducted correctly and the response was appropriate.