In this litigious society, even the best run organization is not immune from legal complaints. The addiction treatment center, dealing as it does with sensitive issues and vulnerable individuals, is no exception. The seriousness and types of complaints will vary. A client may accuse a particular counselor of mistreatment, an employee may make allegations of harassment or discrimination against a supervisor, or perhaps management may suspect an employee of mishandling funds.

Receiving a complaint can be stressful and frightening for the accused, as well as the treatment center as a whole. Emotions flare up, defenses are high and there is a common tendency to act hastily to "deal with" the accused, placate the accuser, and get the problem out of the way. However, it is important to the future of the treatment center to avoid acting rashly and emotionally. Improper investigations can result in a host of morale and legal problems, including charges of discrimination, invasion of privacy, and false imprisonment. Often, the manner in which an organization handles a complaint will be the single most important factor in determining whether the matter is resolved amicably ... or results in a lawsuit.

Treatment centers of all sizes should prepare themselves in advance to handle allegations or suspicions of wrongdoing. In this way, even if the particular complaint or situation catches you by surprise, you will have the tools available to investigate and resolve the matter reasonably and responsibly, and minimize the risk of legal liability down the road.

Suspicion or complaints of wrongdoing: The initial response
The first decision to make when you receive a complaint from a client, an employee or another person or group, or if you suspect an employee or group of employees of misconduct, is to decide whether to bring the matter to an outside party. You must conclude whether to conduct an internal investigation or handle the situation without an investigation. If the wrongdoing in question is of a criminal nature, it is advisable to speak with an attorney. If there is a complaint involving allegations of malpractice, your malpractice insurance policy most likely requires you to inform your carrier. Other situations will involve more discretion as to whether and how to investigate.

Some problems can be resolved quickly, without a formal investigation. In deciding whether to conduct an investigation, consider the following factors:
- Are the issues involved in the complaint complex, or relatively simple?
- How many individuals are involved in the complaint as complainants? How many employees are accused or suspected?
- How serious is the conduct complained of or suspected?
- Do you have all the relevant data easily at hand, or must you gather more facts to come to a conclusion?
Generally, the more complex and serious the matter, the more advisable it is to conduct an investigation to speak to all parties and to obtain all available facts.

Conducting the investigation
The details concerning your investigation will vary according to the situation. However, there are three basic steps to any investigation: planning; fact finding; and analysis and conclusions. If you pay attention to conducting each of these steps thoroughly and justly, you will be more likely to achieve an accurate outcome that will withstand any future legal challenges.

Planning
Your goal should be to develop an objective and fair plan that is designed to gather the necessary information without violating any of the rights of the accused or suspected individuals. First, you must decide who will conduct the investigation: treatment center employees or outside investigators. This decision should hinge on whether you have employees who are familiar with the proper procedures for and experience in conducting investigations. If you do not have this in-house expertise, retain an attorney, consultant, or other expert. Cutting corners by using inexperienced investigators may end up costing far more than you save. If you do use an outside investigator, you may be required under the Fair Credit Reporting Act (FCRA) to get permission from the accused employees to conduct the investigation. You can obtain more information about potential FCRA obligations by consulting an attorney, or reviewing the Federal Trade Commission web site at www.ftc.gov.

Assemble all documentation relevant to the matter at hand, such as the employment files of employees under investigation, written documents such as letters and memoranda, e-mails, time sheets and any policies and procedures that the treatment center may have that apply to the conduct involved. Speak to legal counsel and understand the laws relevant to both the alleged misconduct and the investigation of the allegations. If your organization has multi-state operations, it is important to understand and abide by the applicable laws in the states of each facility that will be involved in the inquiry.

You should also determine to send accused employees home with or without pay until the investigation is completed. If the accusation centers on a violent act or other activity that could threaten the safety of employees or clients, or cause major damage to the morale or effectiveness of other employees, it is advisable to keep the accused away from the premises until the matter is resolved. In other circumstances, there is usually no reason that accused employees cannot continue to report to work as usual while the investigation is pending. When in doubt, it is advisable to pay employees for employer-mandated time away from work. The cost of a few days of salary is significantly cheaper than that of fighting charges of improper withholding of pay.

Fact finding
The fact-finding phase of the investigation involves gathering information about the situation in an orderly and legally proper way. At this stage, your primary focus should be, "What does the organization need to know to reach a sound conclusion, and how can this information best be obtained?"

First, you must select those individuals to be interviewed by the investigator. Generally, you will want to speak with the person making the complaint (if applicable) and the person(s) accused or suspected of the misconduct, as well as their supervisors, witnesses to the alleged incidents; and any individuals that either the complaining party or the accused have requested that the investigators interview. In order to avoid claims of invasion of privacy, interview only those people who are involved in or are likely to have direct knowledge of the conduct under investigation.

Conduct the interviews in a private setting to ensure confidentiality, minimize interruptions and avoid embarrassment. Inform all parties to be interviewed about the purposes of the investigation, the reason you are interviewing them, the seriousness of the investigation and the importance of cooperating fully. Assure them that there will be no retaliation against any participant in the investigation. Often, participants in an investigation are concerned about the confidentiality of the information they provide. While you cannot make assurances that you will not share any information, you should inform them that all information will be kept as confidential as possible, and will only be disclosed to those with a "need to know."

Treat all persons interviewed in a professional and respectful way. Avoid jokes or threats, or personal opinions about the information discussed. Do not physically restrain employees or tell them that if they do not cooperate, they cannot leave the interview area. This can lead to charges of false imprisonment. You may, however, tell employees that their cooperation in the investigation is a condition of their continued employment.

Ask only questions that are relevant to the substance of the investigation. Do not use the interview to conduct a "fishing expedition" about other possible misconduct in the organization. Do not allow the interview to devolve into a discussion about the participantÕs grievances with the organization, or personality issues among the parties involved. Focus on specific behaviors and conduct observed rather than speculation. Limit your conversation with witnesses to what they personally have observed, not what they heard "through the grapevine." Ask open-ended questions. For example, if you are investigating a racial discrimination complaint, you might ask, "Have you observed any tension between Supervisor X and Employee Y?" rather than, "Do you think that Supervisor X is a racist?"

At the end of the interview, thank each participant for cooperating. Reaffirm that retaliation of any kind will not be tolerated, and encourage witnesses and complainants to contact the interviewer if they later remember additional facts, or witness further misconduct of the type being investigated. Document all interviews. Take careful notes during the interview process, and prepare written memoranda summarizing the statements of each participant, as well as any instructions given to the participant during the course of the interview. Ask participants to sign and date the summaries of their individual interviews. If a witness refuses to sign a statement, have the interviewer sign and date the document.

Analysis and conclusion
After you gather the facts, you must analyze the data and take action. Often, it is difficult to reach a definitive conclusion because the information gathered may be sketchy, or conflicting. Many investigations come down to assessing the credibility of the participants, examining the facts and determining the motivation of the individuals. However, it is critical to evaluate all of these factors and reach an informed conclusion to avoid the perception that the treatment center is not responsive to complaints.

You may decide that the evidence does not allow you to reach a firm conclusion about whether the complained of or suspected wrongdoing indeed took place. Even so, it is proper and appropriate to warn the accused to avoid similar conduct in the future, and to encourage the complaining party to report any future incidents.

When the investigation yields a more definitive result, you must determine what actions to take. Appropriate actions will depend on a number of factors, including whether any policies or procedures were violated; how the treatment center has handled similar situations in the past; any relevant legal requirements; whether the employee has had work-related problems in the past; and the existence of any special circumstances that warrant handling the matter more harshly or leniently than it might otherwise be handled. Potential actions vary widely in type and severity, but some options are:
-Verbal warnings.
-Written warnings.
-Demotion.
-Probation or suspension.
-Transfer.
-Termination of employment.

In instances involving more severe penalties, such as demotion or termination of employment, it will be helpful to consult an attorney before taking action to ensure that you are on sound legal grounds.

Once you have decided upon a course of action, you should inform both the accused and the complaining party of the results of the investigation. Often, other participants in the investigation will be curious to learn of the results, but it is neither necessary nor advisable to provide them with details. Providing details to individuals that do not have a "need to know" may result in invasion of privacy charges. If witnesses ask about the outcome of the investigation, politely tell them that the matter is confidential and thank them for their cooperation.

Documenting the investigation
At the conclusion of the investigation, the investigators should prepare a written report, summarizing the issues involved, the steps taken, the substance of each witness interview and the findings and actions taken. This report should also include the signed statements of participants in the process.

Even if you conduct a flawless investigation, you may still be sued over the matter in the future. Frivolous or unsubstantiated lawsuits are a fact of life in this day and age. For this reason, it is vital that in preparing the report, you remember that every document prepared in relation to the investigation may some day be used as evidence in a court of law. Your goal is to show a potential jury or other administrative body that you took the complaint seriously, responded appropriately and did your best to reach an informed and responsible conclusion and take the necessary actions. By proactively taking the measures described above, you will not only greatly enhance your chance for success in a legal action, but you will also improve the reputation of the treatment center as a whole as a fair employer and a responsive member of the community.

Shawn Smith, JD, is a speaker, consultant, attorney and the founder of Next Level Consulting, LLC, a
management consulting firm. She can be reached via e-mail at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or 914-378-5081.

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