Conducting an effective workplace investigation is essential when an employer receives information that wrongdoing may have occurred in the workplace. While a proper investigation can save an employer from a costly lawsuit, boost employee morale and prevent further occurrences, a poorly conducted investigation can expose the employer to potential litigation. Every employer should have a policy that instructs employees to report any claims of wrongdoing—and especially any concerns about harassment or discrimination—to management and outlines the general procedure the employer will follow for investigating such claims.
While there is no “cookie-cutter” approach that applies to every situation, an effective investigation should generally follow these basic steps:
Determine Whether an Investigation is Necessary. If an employer has any notice of wrongdoing, an investigation should be conducted. However, an investigation is not always necessary where an employee is simply expressing dissatisfaction with their job that does not raise any legal issues. When in doubt, investigate.
Determine Whether Interim Relief is Necessary. Employers should consider providing the complaining employee “interim relief” while an investigation is being conducted. Examples include rearrangement of the reporting relationship; temporary transfer; and paid leave. Employers must ensure that the interim relief is not punitive.
Determine Who Should Conduct the Investigation. If done internally, the person(s) selected to conduct the investigation should be a respected unbiased management level employee who has knowledge of the employer policies and procedures. In some cases, it’s advisable to have an independent third-party conduct the investigation.
Preserve, Obtain and Review All Relevant Documents. This includes written and electronic documents.
Understand the Potential Legal Issues. Understanding the legal issues involved will help the employer ask the appropriate questions.
Determine the Time and Place to Conduct the Investigation. Generally, employers should conduct interviews in-person and in a private area that allows employees to be candid and forthright.
Separately Interview Individuals With Knowledge of the Subject Matter. Generally, interview the complaining employee first. Ask/learn about others who may have relevant information. Develop an outline of questions to ask. Ask open-ended questions and listen carefully. Conduct follow-up interviews if necessary.
Take Copious Notes and Prepare a Report of Findings. Take contemporaneous notes and ensure they are factual. The investigator may ask the employee to review the notes and indicate if anything in the notes is not accurate. The investigation report can summarize the key findings and, in some circumstances, the recommended course of action.
Take Appropriate Action. The decision maker(s) should review all facts relevant to the conduct in arriving at a decision. Some factors that should be considered include: severity of any misconduct; disciplinary record; past practice; and future precedent.
Follow Up. Employers must continue to monitor the situation to ensure that the issue has been resolved.
This information is for educational purposes only to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship.
