Conducting a workplace investigation can be necessary when an employee is accused of inappropriate behavior, such as making inappropriate comments or groping a coworker. It can also be necessary when someone complains that an employee is siphoning the company’s inventory or when a supervisor is allegedly speaking to their team members in an offensive, demeaning, and bullying tone.
While each case is different, it’s important to follow the same framework to ensure that all investigations are fair, thorough, and legally compliant. When you successfully address the root cause of the issue and take appropriate corrective action, you minimize the risk of harm to the affected individuals and the business at large.
Here's a step-by-step guide on how to conduct an effective workplace investigation, from complaint to closure:
Step 1: Determine if an investigation is necessary
Whenever an informal or formal complaint is raised, or the employer learns of conduct that raises a red flag, an investigation is generally in order. Not investigating could expose the organization to liability if it knew or should have known about the situation but failed to address it.
Step 2: Determine if immediate removal is necessary
Are there times when the immediate removal of an employee from the workplace would be justified without an investigation? Maybe. Let’s say an employee lunges at someone with a knife. In that case, immediate removal from the workplace under a zero-tolerance workplace violence policy could be considered justified.
However, in most cases, it’s best to suspend the employee with pay while you investigate the incident. Always consult with counsel as needed.
Step 3: Do not promise confidentiality
While you should try to maintain confidentiality, don’t promise the complainant or anyone else involved in the investigation that everything they share will be kept confidential. That’s because the information they provide may need to be shared with the accused or witnesses to elicit relevant information during the investigation.
If someone asks whether the information, they’re sharing will be kept confidential, let them know it may be shared with others on a need-to-know basis, but reassure them that the process will be conducted with discretion.
Step 4: Separate the accuser from the accused, if necessary
If the allegation involves harassment or a hostile work environment, you may need to immediately separate the accuser from the accused. This could mean a schedule change or a transfer but be careful not to do anything that could be construed as a penalty against either employee at this point.
For example, a complaint about workplace harassment is considered a legally protected activity. If the accuser is subjected to an adverse employment action, such as an involuntary transfer, due to the accusation, they could have grounds for a retaliation claim. This is true even if the underlying harassment claim proves to be unfounded.
Step 5: Select an investigator
The investigator will dictate the tone, scope, and quality of the investigation. Select someone who is experienced, knowledgeable about applicable labor and employment laws, detail-oriented, neutral when interviewing the accuser, accused, and potential witnesses, and can maintain decorum and confidentiality as needed. Consider an HR professional or in-house attorney or hire a third-party investigator if there is a risk of actual or perceived bias.
Step 6: Develop a game plan
Create a detailed plan for the investigation, including what the issue or complaint is, who will be interviewed initially, what questions will be asked, what documentation may be available as supporting evidence, and the process for taking and retaining information disclosed during the investigation. Be prepared to give yourself time as the length of the investigation can vary depending on how many people need to be interviewed and evaluating everyone’s credibility.
Step 7: Conduct the investigation
Follow a consistent framework for conducting the investigation, such as interviewing the accuser, identifying who to interview next based on their statement, assessing the credibility of all parties who have been interviewed, and producing an appropriate action to be taken based on the findings.
Write an investigation report summarizing what the investigator did and why, the timeline of the investigation, how the complaint came about, the interviews conducted, any other evidence considered, the findings, action taken to remedy the situation, and any employment policies or procedures factored into the investigation.
Step 8: Credibility determinations, interviews, and investigation notes
Assess the credibility of witnesses by considering several factors, such as whether their statement corroborates what others have said, whether they fully observed what happened, their reputation for being truthful or dishonest, their recollection of what happened, whether they have a motive to lie, and their demeanor during the interview.
Take detailed investigation notes and keep interviews uniform and impartial to avoid inconsistency in the way interviews are conducted, making your workplace investigations effective.
A workplace investigation could easily come under scrutiny by a government agency, such as the Equal Employment Opportunity Commission (EEOC), a judge or a jury. Be sure you have meticulously followed all the steps in the process and that the final report is sufficient to defend the organization against any subsequent claims. If you look back on a workplace investigation and see missteps that could spark future liability, focus on correcting them for future investigations.
Remember that any documentation, including notes and emails, may later be discoverable if a lawsuit results; talk to counsel if you have questions about discoverability issues.
Step 9: Take corrective action
If evidence of discrimination is present, intervene immediately, correct any discriminatory effects, and prevent the discrimination from happening again. Document the results of the investigation and any corrective action taken.
To ensure that your workplace investigation policies and practices are effective, be sure investigators are well-trained, keep an up-to-date list of qualified outside investigators to call on, regularly review and update organizational policies, and conduct an organizational assessment to see if you can spot patterns or practices that may have an adverse effect on the workplace culture.
If you ever feel in over your head or the investigation reveals systemic patterns of discriminatory or otherwise unlawful conduct, consider getting an attorney involved as soon as possible. An attorney who is adept at workplace investigations can help you navigate any challenges while preserving privilege, where it applies, if the allegations also spark a lawsuit.
Effective Workplace Investigation Example
Here is an example of a workplace investigation cited by the EEOC:
An employee complains that their supervisor disciplined them more harshly than their colleagues because of their race. Title VII of the Civil Rights Act prohibits discrimination based on race. And the organization has a written policy stating that employees must be treated fairly, which means they cannot be singled out because of their race or any other protected trait when being subjected to an adverse employment action.
How should the organization respond? According to the EEOC, it is critical to take the complaint seriously and investigate it so the alleged misconduct does not continue to happen. Start by:
- Asking the employee to explain why they believe they were treated differently and to identify the employees they think were treated more favorably
- Asking their manager to explain the disciplinary actions taken against them, as well as the disciplinary actions taken against other employees who committed similar infractions, the reason for the actions and the reason any employees may have been treated more favorably than others
- Determining whether the disciplinary policy has been consistently applied (This will need to consider whether the complainant and the alleged comparators are first-time or repeat offenders of the same or similar infractions, since the level of discipline may be different depending on the number and type of offenses.)
- Considering whether there is some other reason the employee was treated differently
If evidence of discrimination is present, the EEOC says to intervene immediately, correct any discriminatory effects and prevent the discrimination from happening again.
In this example, the disciplinary action to which the employee has been subjected should be amended. And if they would have received any pay, seniority or other benefits had they not been disciplined, those should be awarded, too.
The organization would then need to decide whether the manager who administered the disparate discipline should be disciplined and if so, how. From there, the organization should inform them about the investigation, the results, and the basis for the action.
In addition, the EEOC says to document the results of the investigation and any corrective action taken.
Extra tips for an airtight workplace investigation
Now is a good time to review your workplace investigation policies and practices to ensure you are effectively handling employee complaints from intake to closure.
Ogletree Deakins notes that internal investigations often reveal “ongoing, large-scale, institutional” issues, which, if left unremedied, could open the organization up to increased legal risks and lower employee morale. Here are four proactive steps they recommend ensuring you are well prepared for an internal investigation:
- Be sure investigators are well trained to:
- Interpret new vernacular being used in employee complaints
- Draft investigatory reports
- Handle nuanced and complex matters
- Keep an up-to-date list of qualified outside investigators to call on.
- Regularly review and update organizational policies, paying special attention to your code of conduct, procedures for handling complaints and whistleblower protections.
- Conduct an organizational assessment to see if you can spot patterns or practices that may have an adverse effect on the workplace culture.
Conducting an effective workplace investigation and following a consistent framework is crucial to ensure fairness, thoroughness, and legal compliance, while minimizing harm to the individuals involved and the organization.
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