What Happens in an HR Investigation in New York

In New York, an internal investigation of a harassment complaint generally follows the employer's written policy, and the State publishes a model of what that policy should contain. Under New York State's model sexual harassment prevention policy, the person or office the employer designates reviews the complaint and takes interim measures, preserves documents, interviews the parties and witnesses, writes up the findings, and notifies both sides when the investigation is complete.⁠^[2] The model policy says the investigation will be prompt, thorough, and started and completed as soon as possible, and kept confidential to the extent possible; it gives no number of days.⁠^[2]

Where do the rules for an internal investigation come from?

Mostly from the employer's own policy, which State law shapes. Under New York State Labor Law § 201-g, every employer must adopt the State's model sexual harassment prevention policy or a policy that equals or exceeds its minimum standards.⁠^[5] The statute says the policy must include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties.⁠^[1] The State describes its model as a template that employers are encouraged to tailor, with no section omitted.⁠^[6] So the document that governs a particular investigation is the employer's policy, which may be more detailed than the model. The policy and training requirements page covers that statute.

The anti-discrimination statutes come at the subject from another direction: they make the employer's response to a complaint part of the question of who is legally responsible.

• Federal law. For harassment by a coworker, the Second Circuit has held that an employee must show that the employer failed to provide a reasonable avenue for complaint, or knew or should have known about the harassment and failed to take appropriate remedial action.⁠^[7] For harassment by a supervisor that did not end in a tangible employment action, the employer's defense depends in part on proving it exercised reasonable care to prevent and promptly correct the behavior.⁠^[8]
• New York State law. Under the New York State Human Rights Law (NYSHRL), the fact that a person did not complain to the employer about harassment is not determinative of whether the employer is liable.⁠^[9]
• New York City law. Under the New York City Human Rights Law (NYCHRL), an employer is liable for a non-supervisory employee's discriminatory conduct if it knew of the conduct and acquiesced or failed to take immediate and appropriate corrective action.⁠^[10]

Employer liability for supervisor and coworker harassment compares all three layers of law.

What are the steps in the State model policy?

Under the State model policy, an investigation happens whenever management receives a complaint about discrimination or sexual harassment, or otherwise knows it may be occurring.⁠^[11] All complaints are investigated, whether they were made verbally or in writing.⁠^[2] The model policy then lists the steps, noting that the process may vary from case to case:

1. Review and interim measures. The designated person promptly reviews the allegations, decides the scope of the investigation, and takes interim actions as appropriate, for example instructing the person complained about not to communicate with the person who reported. If the complaint was verbal, the employer asks for the complaint form in writing or prepares the documentation itself.⁠^[2]
2. Preserving records. The employer takes steps to obtain and preserve documents, emails and phone records relevant to the allegations.⁠^[2]
3. Interviews. The employer seeks to interview all parties involved and relevant witnesses.⁠^[2]
4. A written record. The employer documents the investigation in writing: the documents reviewed, the people interviewed, a timeline, prior incidents, and the basis for the decision together with any corrective action.⁠^[2]
5. Secure storage. The written record is kept secure.⁠^[2]
6. Notice of completion. The employer promptly notifies the person who reported and the person complained about that the investigation is complete.⁠^[2]
7. Outside options. The employer tells the person who reported about the right to file a complaint externally.⁠^[2]

How long does an investigation take?

The State model policy sets a standard, not a deadline: prompt, thorough, and started and completed as soon as possible.⁠^[2] An employer's own policy may set a target number of days, so check yours.

The legal calendars keep running while the employer investigates. The State model policy warns that complaining internally does not extend the time to file with the Division of Human Rights or in court.⁠^[4] The EEOC says its time limits for a federal charge generally are not extended while a person uses an internal grievance procedure.⁠^[12] See New York employment claim deadlines.

Where do you stand in the process?

Your position	What the State model policy says	What the statutes add
You made the complaint	The complaint is investigated whether it was verbal or written, and you are told when the investigation is complete and about outside filing options.⁠[2]	Under the New York State Human Rights Law (NYSHRL), no covered person may retaliate against someone because that person opposed a practice the law forbids.⁠[13]
You are a witness	All employees are required to cooperate with an internal investigation, and anyone who provides information or assists is protected from retaliation.⁠[11][14]	Under federal law, Title VII protects an employee who speaks about discrimination in answering questions during the employer's internal investigation.⁠[3]
You are the person accused	Everyone involved, including alleged harassers, deserves a fair and impartial investigation, and you are told when it is complete.⁠[2]	The State statute says the policy must ensure due process for all parties.⁠[1]

If you made the complaint

Under the State model policy, a complainant can expect an interview, possible interim measures and notice when the investigation ends.⁠^[2] The model policy says the employer will discipline anyone who retaliates against employees who file complaints, support another person's complaint or participate in an investigation.⁠^[14] In New York City, the NYCHRL says retaliation need not result in an ultimate action or a materially adverse change in employment, provided the act is reasonably likely to deter a person from engaging in protected activity.⁠^[15] If your treatment changes after you complain, see what counts as retaliation and placed on a PIP after complaining.

Practical points: keep a copy of what you submitted, write down the date of each interview and who was present, and give the investigator the names of people who saw or heard the events. Building a record covers this in more detail.

If you are a witness

The model policy has all employees cooperate with an internal investigation, and it protects those who provide information so long as they reasonably believe they witnessed or experienced the behavior.⁠^[11][14] Under the model policy, an employee who witnesses harassment is encouraged to report it, while a supervisor or manager who witnesses it is required to.⁠^[16] The page for witnesses and bystanders and the page on retaliation against witnesses go further.

If you are the person accused

The model policy calls for a fair and impartial investigation for alleged harassers as well as for complainants and witnesses.⁠^[2] An interim instruction not to contact the person who reported is one of the measures the model policy names.⁠^[2] On outcomes, the model policy says potential discipline depends on the degree of the harassment, might include education and counseling, and may lead to suspension or termination when appropriate.⁠^[17] It also says the retaliation provision is not intended to protect people who make intentionally false charges.⁠^[18]

The anti-retaliation rules apply to the accused person's own conduct during the investigation. Under the NYSHRL, the ban on retaliation applies to any person engaged in an activity the law covers, not only to employers.⁠^[13] As a practical matter, that is a reason not to confront the person who complained or the witnesses, and to raise your side with the investigator instead.

If you are a manager or work in HR

Under the State model policy, supervisors and managers who receive a complaint or suspect harassment must report it to the designated person and can be disciplined for failing to do so.⁠^[19] People whose job is to handle complaints should know one federal wrinkle: in the Second Circuit, an employee whose job is to report or investigate others' discrimination complaints does not engage in protected opposition merely by doing that job, but is protected when actively supporting other employees in asserting their rights or personally complaining about the employer's discriminatory practices.⁠^[20] See the guide for managers and small employers.

What an internal investigation does not do

• It does not decide the legal claim. The State model policy states that adopting it is not a defense to charges of sexual harassment, and that each claim will be determined under existing legal standards.⁠^[21]
• In New York City, a policy mostly affects penalties. Under the NYCHRL, where a supervisor harassed or the employer knew, a good anti-discrimination policy only mitigates civil penalties and punitive damages; compensatory damages, costs and attorney's fees remain recoverable.⁠^[22]
• It does not pause filing periods. The State model policy says an internal complaint does not extend the time to file with the Division of Human Rights or in court.⁠^[4]
• It does not guarantee a result. What the model policy commits the employer to is a process and, where its written record identifies corrective action, carrying that action out.⁠^[2]
• It is not fully private. The model policy's promise is confidentiality "to the extent possible."⁠^[2] Is what I tell HR confidential? explains what that means in practice.

Everyone involved should also keep their own records intact. In New York courts, a party who destroys evidence it had an obligation to preserve can face sanctions if the evidence was relevant and was destroyed with a culpable state of mind.⁠^[23]