Workplace Investigations: A Framework for Success
Workplace investigations are a common necessity for many reasons—from harassment to conduct-related issues. Knowing how to conduct a thorough fact-finding exercise is key for reducing the liability you face. In this post, we will explore the best practices and steps for conducting workplace investigations.
Best Practices for Workplace Investigations
Understand the goals.
It is important to know the purpose of workplace investigations before you begin. The goal is to determine the facts of the situation. Managers can then make a decision based upon those facts. Also, the company can use this to show that it has done its due diligence to gather the facts of the situation. Last, it also offers the chance to act as necessary, limiting the risk for all involved.
Once the HR contact receives the complaint, they should assess whether an internal investigation is necessary. Often, you won’t need any extra facts or resources to resolve the issue. In those cases, management can simply resolve the matter informally. However, an internal investigation should be conducted if the complainant cannot supply all the facts needed to decide.
It is important to consider any complaint in an unbiased manner. Sometimes people make assertions out of spite or in retaliation against a supervisor for providing disciplinary action. However, until the conclusion of a full and careful look, hold off on any decisions about guilt or innocence.
Throughout the process, it’s important to be fair. For example. the claim could eventually become a lawsuit. Would the evidence and your overall process stand up to a neutral third party?
Be timely with your response.
Workplace investigations typically involve issues that are sensitive in nature. This requires employers to address the situation as quickly as possible. You should have a well-defined process for complaints like these. The process should dictate how complaints are routed from supervisors to HR. All leadership should be trained to contact HR if an employee files a complaint with them. Be aware that formal complaints are not necessary to trigger an action. Once you’re aware of possible misconduct, start investigating even if no complaint is filed. The more you delay in addressing an issue, the higher the risk that management jeopardizes their employees’ trust.
Another key reason for promptness is to determine whether any action needs to be taken before you begin. For example, if there are risks to an employee’s health or safety you must act quickly. Paid suspensions or temporary transfers may provide relief during the process. Avoid taking any action against the complainant (such as an involuntarily transfer). Some might consider that retaliatory.
Not only should you start quickly, but you should also move quickly too. A quick investigation allows you to preserve evidence and allow witnesses to recall the facts more accurately. If there are delays, document the reasons for them and inform the parties of the results once you’re finished.
Take proactive steps to avoid retaliation.
It is important that everyone knows that you will not tolerate any form of unlawful harassment or retaliation. This not only protects those who made the claim, but also any of the witnesses. Before you begin, inform them all that the employer will not tolerate retaliation. Make sure that this information lives not only in your handbook, but also in any training. It should also be documented in each interview that this statement was made. Everyone should be aware that this includes any behavior or conduct that could be viewed as retaliatory. It doesn’t matter of whether or not that was the intent.
Make no promises of confidentiality.
Often, employees will make a complaint but ask that action not be taken or for their name to be kept secret. This is usually out of fear of retaliation. But is not a promise you can keep. Make sure your supervisors and HR reps understand this. You will treat their statements as need-to-know and inform the claimant of that. But the company faces legal questions if it doesn’t investigate issues brought to your attention. Reinforce these rules often and inform the employee that they should report it immediately.
Workplace Investigation Steps
Prepare for the process.
Typical steps in preparation for the investigation:
- Choose an investigator.
- Come up with a strategy and consider all areas of liability. Depending on the situation, it may be wise to involve legal counsel in this portion of the process.
- Prepare a timeline.
- Create a list of people to talk to (complainant, alleged victim, accused, witnesses)
- Consider the order of interviewees
- Gather a list of questions. Open ended as well as follow-up questions that clarify the who, what, when, where, and why. The questions should allow you to find the facts and assess their value.
- Select a time and location to conduct the investigation. Ideally, this is private and away from company premises.
- Identify or obtain any related documents (emails, notes, personnel documents, etc.)
- Ensure that the company is following guidelines for workplace investigations (e.g. EEOC, union)
Choose your investigator wisely.
Selecting the appropriate person to serve as the investigator is key. Great picks could include those who are:
- Not too closely involved in the situation (objective/unbiased)
- Trusted for their honesty, credibility, discretion
- Trained in conducting workplace investigations
- Able to serve as a company witness
Typical internal investigators:
- HR Managers
- Supervisors/Managers (for smaller infractions)
- Third party/legal counsel (If litigation is possible or involves a high-level official. Note that a third-party cannot defend the employer in any litigation.)
If possible, use two investigators during the interview. That way, one can take notes, while the other focuses on questions. The second investigator can also serve as a witness to confirm events or statements that occurred during the interviews.
Conduct the interview.
When interviewing witnesses, take the time to remind them that you don’t tolerate retaliation. The purpose of the interview is to gather facts about a particular situation. Ask that they be as honest, candid, and detailed as possible. Inform them of what to expect after the any workplace investigations are complete. Also let them know who to contact if any other questions or concerns arise.
Typically, it will make sense to interview the complainant first. Request a written statement from them to start. If they’re willing, these are very helpful. This helps set the facts of the situation early. It is natural for stories to change over time, so the sooner the better. It is a good idea to ask them if they know of other witnesses.
During the interview with the accused, let them know that your only goal is to find the facts. Remind them that your company bars anyone from impeding the investigation. Interference or reprisals are subject to corrective action, up to and including termination. Review the allegations and allow them the chance to share their side of the story. Be sure to ask if they recommend that you speak to any particular witnesses to the situation.
Interviewees will provide more fruitful information if you use open-ended questions in your interview. Listen carefully to their responses and follow up with questions that encourage them to provide more details. Remember to ask each person to provide any supporting documents that they may have.
If possible, try to gather signed, written statements from the witnesses upon completion of the interview. If there is any history of similar behavior or accusations in the past, include that in the report.
Document the process and take appropriate action.
After the interviews, documentation, and fact-finding prepare the report. Focus the report to identify any policy or procedure violations. Next, outline the steps in the investigation process. Start by analyzing any inconsistent or conflicting details and determine to the best of the employer’s ability what actually occurred. Keep in mind that this investigation report may be subject to discovery should the situation result in a lawsuit.
After all the interviews, prepare corrective actions for any outstanding issues. It’s important to administer the corrective actions in a timely manner. Potential action items may include training, disciplinary action, creating new policies, or revising existing policies. Always ensure consistency between any disciplinary action imposed in prior similar situations. Avoid favoritism for top performers or key employees.
If a violation is found and corrective action imposed, and the violation had a victim, the company should find a way to support the victim if at all possible.
Regardless of the outcome, follow-up with employees to let them know that you took the complaint seriously. Make them aware that this led directly to a thorough investigation into the facts. However, there is no need to disclose information about any specific corrective action taken. It’s important that HR or a supervisor monitor the situation going forward. You want to ensure that no retaliation occurs, and employees immediately report any additional claims or retaliation.