Five Key Steps to Conducting a Workplace Investigation
By Marylou V. Fabbo - Skoler, Abbott & Presser, P.C.
November 30, 2017
A reasonable, good-faith investigation can result in satisfied employees, and, on the flipside, a disorganized, incomplete and impartial investigation can get be an employee’s attorney’s best weapon in a lawsuit. A good investigation is conducted by the appropriate person(s), in the proper manner, supported by evidence, and results in a carefully-drafted investigative report.
What Should You Investigate?
Since you likely already have more than enough to do in one day, you should limit your investigative efforts on things that really matter, and avoiding a lawsuit – or winning one – are a couple of those things. The words “harassment,” “discrimination,” and “retaliation,” should hit you like a taser. Do not hope the issue will go away or delay looking into the matter until after your vacation!
Step 1: Decide Who Will Conduct It
We’ve all heard it: Prior planning prevents poor performance! That holds true with investigations. The first step to a useful investigation is to determine who will conduct it. Some options include human resources personnel, management, an outside consultant, or an attorney. Give some thought to whether those who are under consideration for this task have any bias toward the individuals involved and whether they have experience with witness interviews. If a higher-level manager is involved, it may make sense to bring in someone from outside the organization. It also is a good idea to consider using a third party if you do not have adequate time or resources to undertake the investigative process. Most attorneys have been trained to be good investigators, but you should be aware that having an attorney investigate a matter could result in the attorney becoming a “fact witness” to the thoroughness of the investigation and, therefore, not able to represent your organization in any related litigation.
Step 2: Determine What Information You Need to Gather
What information do you need to bring the matter to closure? Usually this includes gathering documents and interviewing witnesses. As an investigator, it is important to identify all possible sources of information, including those sources that may be revealed during witness interviews. What about emails (including deleted emails), Facebook or LinkedIn? Gathering social media information may or may not be appropriate, so you should check with your attorney before doing so. When it is, it can be a daunting task, but electronic evidence can make or break a case. If the investigation is one into behavior that could subject your organization to a lawsuit, the gathering and preservation of evidence is even more critical.
Step 3: Conduct Witness Interviews
All interviews should begin with a brief introduction that includes the reason for the interview. It’s usually not necessary to get into a lot of detail. Saying something like, “the company is investigating a complaint of harassment,” might do it. Reassurance that the company will not retaliate against the party being interviewed based on his or her participation in the interview or investigation is also a must. While you can let the interviewee know that you will keep his or communications confidential to the extent possible, do not guarantee confidentiality.
We usually recommend starting with the complaining party. If you receive a written complaint or a verbal summary of the complaint, take the time to flesh out the details with the employee. Similarly, do not forget to interview the accused, even if seems beyond a doubt that he or she is guilty of the conduct complained about. No investigation seems fair when the person accused has not had a chance to tell his or her side of the story. No matter whom you are speaking with during the investigation, treat that person with respect and courtesy. Avoid getting into a situation where you are the one being interviewed and responding to questions – remain in control. And, regardless of your personal thoughts, absolutely do not share your opinion on the validity of the allegations.
Step 4: Reach a Conclusion
Once an investigator has gathered all of the “evidence,” the investigator must evaluate it and make a determination as to whether the complaint had merit. Keep in mind that investigators are human! An investigator is likely going to have to make a credibility determination. Simply concluding that no action can be taken because it’s a “he said/she said” situation is not going to cut it in most cases. If you have a reason to believe one employee over another, then do it—and document why you reached that conclusion.
All along the way, the investigator should have been keeping good notes of his or her process, witness interviews and review of pertinent hard and electronic evidence. Once you have reached a conclusion, you should use those notes in connection with drafting an investigation report. The report should set forth the steps of the investigation as well as your conclusion and recommendation. You may want to run your thoughts by a trusted colleague and your employment attorney before reducing them to writing.
Step 5: Take Action
Do something! Provide the investigation results only to those who need to know. If you need to take prompt, remedial action or discipline or terminate someone, do it as soon as possible. You need not tell the complaining party the specifics of the investigation. A statement that the matter has been investigated and appropriate action taken may be what’s best under the circumstances. Also, it’s a good idea to let the complaining party know that you won’t tolerate retaliation against him or her and that if they have another issue with Employee X, they should bring it to your attention immediately. Checking in with the employee from time-to-time after the investigation is a good idea. And, of course, document your check-ins.