When you receive information of potential wrongdoing in the workplace, you generally have a responsibility to conduct a prompt, thorough, and impartial investigation into the allegations. Here are some do’s and don’ts for conducting workplace investigations.
Take all complaints seriously. Encourage employees to report issues before they become severe or pervasive and without fear of retaliation. Provide employees with multiple avenues to raise complaints, including their own or other supervisors and HR. Document all complaints and thoroughly evaluate the situation.
Conduct an initial interview. An initial interview can help you assess whether an investigation is needed. Some performance issues or small misunderstandings about company policy or rules may only require a meeting to understand the issue and resolve it. If the allegations are more serious, such as a harassment complaint, and/or require more resources or information, then a more thorough investigation is necessary.
Take steps to prevent retaliation. Make sure employees understand that they will not be retaliated against for raising complaints or participating in an investigation. Include anti-retaliation provisions in equal employment opportunity, anti-harassment, and other applicable policies.
Interview individuals separatelyPrior to beginning the investigation, identify who you will interview (the complainant, each witness, the accused) and prepare a list of questions. Interview each party separately, in private. Take detailed notes and look for inconsistencies, opportunities for clarification, additional evidence, and the names of other potential witnesses.
Preserve evidence. If there is any evidence of the alleged misconduct beyond witness statements, such as emails, instant messages, or video surveillance, take all necessary steps to protect and preserve it. It is a best practice to preserve all business records, whether in paper or electronic form, as soon as you learn about a dispute. This is especially important if you reasonably anticipate a legal claim.
Protect confidentiality to the extent possible. Protect the confidentiality of the investigation to the best of your ability. However, avoid promising confidentiality, since it may not be possible to keep all information completely confidential. Instead, explain to individuals involved in the investigation that the company will keep information confidential to the extent possible for a thorough investigation. Report information learned from the investigation only to those who have a legitimate business need to know. See the Don’tssection below for more information on confidentiality.
Compile a report of findings. When preparing the report, include a chronology of events, a list of witnesses, the facts of the case, any evidence you may have been able to obtain, and the conclusions you have made regarding the incident(s) in question. You may also want to include an action plan for preventing the misconduct in the future.
Maintain a separate investigation file. Maintain an investigation file, separate from personnel files, that includes: (1) all interview notes; (2) all communications with witnesses; (3) all written witness statements; (4) all documents that support/refute the allegation; (5) the investigator’s report; and (6) all documentation notifying applicable parties of the investigation results and any remedial action taken.
Consult legal counsel. Before launching an investigation, consider consulting legal counsel since the investigation, as well as all documents related to it, might become part of a lawsuit if the employee ultimately files a legal claim.
Don’t jump to conclusions. Always wait until you finish the investigation before making a decision about whether a violation occurred and the corrective action needed. Never offer any opinion or say anything to interviewees that would indicate you have already reached a conclusion (such as, “I believe you,” “this is a meritless complaint,” etc.). If you can’t make a determination because the evidence is vague and inconclusive, you may still need to implement preventative measures such as training and monitoring. Consider investigating further or issuing a cautionary warning reminding employees of applicable company policy.
Don’t choose an investigator with a conflict of interest. Investigations must be impartial. If the investigator has a conflict of interest (or appears to have one) with any party to the investigation, it can undermine the credibility and effectiveness of your investigation. For example, the accused shouldn’t have supervisory authority over the investigator. When possible, more than one individual should be involved in the investigation, including acting as a witness or note taker during interviews.
Don’t have a blanket rule concerning confidentiality. To protect the integrity of investigations, it had been a common practice for employers to ask employees to avoid discussing the investigation with co-workers. However, unless certain circumstances exist, the National Labor Relations Board (NLRB) has held that having a blanket ban on discussing ongoing investigations is generally not permitted under Section 7 of the National Labor Relations Act. Section 7 entitles employees to work together for their mutual aid and protection.
Don’t forget to follow up. Following all interviews and a careful review of the evidence, notify both parties of your findings and the corrective action you plan to take, if applicable. When sharing results with the complainant, confirm that he or she has been properly heard and understood, even if he or she disagrees with the results. Additionally, set a timeframe to follow up with the complainant to ensure the conduct is no longer occurring.
Part of maintaining a fair, equitable, and productive workplace is conducting a proper investigation when allegations of misconduct surface. A thorough and impartial investigation can help you determine appropriate corrective action and remedy wrongdoing.