April 2024 Newsletter

HOW TO CONDUCT A WORKPLACE INVESTIGATION

When an employee makes an informal or formal complaint, the employer should take immediate steps to stop the alleged conflict, protect involved parties and begin investigations. Under many laws (e.g., Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Occupational Safety and Health Act (OSHA), the Sarbanes-Oxley Act, state and local nondiscrimination laws), employers are legally obligated to investigate complaints (harassment, discrimination, retaliation, safety and ethical) in a timely manner. In addition, any appropriate corrective action is required to be taken by the employer to ensure illegal actions and behaviors cease immediately.

Responsiveness to a complaint and an investigation will not only yield the best information and evidence, but it will also enhance both the investigator's and the employer's credibility. Investigations can help the organization identify and resolve internal problems before they become widespread. Given that every complaint has the potential to become a lawsuit, employers should investigate every case in a manner in which it can be presented to a court of law, if necessary. As potentially disruptive as investigations can be, they must be prompt, thorough and effective to ensure everyone's protection. The following steps should be taken as soon as the employer receives a verbal or written complaint.

Step 1: Ensure Confidentiality

The employer must protect the confidentiality of employee claims to the best of its ability, being aware that overly broad confidentiality rules can be deemed to unlawfully restrict employees' rights to discuss terms and conditions of employment. At the same time, the employer must conduct a prompt and an effective investigation. Therefore, it may not be possible to keep all information gathered in the initial complaint, such as interviews and records, completely confidential. The employer should explain to the complaining party and all individuals involved in the investigation that all information gathered will remain confidential to the extent possible for a thorough investigation. It should also be explained that to conduct an effective investigation, some information will be revealed to the accused and potential witnesses, but that information will be shared only on a "need to know" basis. An employer should never promise absolute confidentiality to any party involved in the investigation.

Step 2: Provide Interim Protection

One of the first considerations may be the need to take immediate measures for the protection of the accuser or the alleged victim. Separating the alleged victim from the accused may be necessary to guard against continued harassment or retaliation. Actions such as a schedule change, transfer or leave of absence may be necessary; however, complainants should not be involuntarily transferred or burdened. These types of actions could appear to be retaliatory and result in a retaliation claim. The employer and the accuser must work together to arrive at an amenable solution. Employers may wish to seek legal advice prior to making any decisions.

Step 3: Select the Investigator

The appropriate investigator should possess all the following:

    • An ability to investigate objectively without bias.
    • No stake in the outcome. The investigator should not have a personal relationship with the involved parties. The outcome should not directly affect the investigator's position within the organization.
    • Skills that include prior investigative knowledge and working knowledge of employment laws.
    • Strong interpersonal skills to build a rapport with the parties involved and to be perceived as neutral and fair.
    • Attention to detail.
    • The right temperament to conduct interviews.

In addition, the investigator should be able to maintain confidentiality, be respected within the organization (because his or her conclusions will be used to make a determination), have the ability to act as a credible witness and, if internal, have the likelihood of continued employment with the company.

Employers generally use the resources of experienced HR professionals, internal security, legal counsel (inside or outside) or a third-party investigator.

Step 4: Create a Plan for the Investigation

An investigation must be planned to be effective and properly executed. A complete plan should include an outline of the issue, the development of a witness list, sources for information and evidence, interview questions targeted to elicit crucial information and details, and a process for retention of documentation (e.g., interview notes and e-mails that could be treated as evidence).

The use of all available resources will assist the investigator in developing a proper plan. The Equal Employment Opportunity Commission (EEOC) provides guidelines and definitions to employers on specific topics such as sexual harassment and discrimination. Additionally, numerous online and print sources are available to assist and even provide a step-by-step guide.

Step 5: Develop Interview Questions

Questions should be developed ahead of time in the planning stage, although additional questions will be added throughout the investigation as more evidence and information are shared. Good questions are relevant and designed to draw out facts without leading the interviewee; they should be open-ended to elicit as much information as possible. The EEOC has sample investigation interview questions available on their website.

Step 6: Conduct Interviews

Once the appropriate investigator has been selected, an investigation plan has been developed and interview questions have been created, interviews can be conducted. The investigator should inform all parties involved of the need for an investigation and explain the investigation process. Caution should be used when stressing confidentiality of the investigation process as this can be seen as interference with employee rights to engage in concerted activity under the National Labor Relations Act (NLRA).

The investigator should focus on being impartial and objective to gather and consider relevant facts. Prevention from pushing the investigation in any particular direction is imperative. The investigator should never offer any opinion or say anything to interviewees that will discredit his or her impartiality. Objectivity must be maintained with every interview.

Taking notes, looking for inconsistencies, and seeking opportunities for more evidence and names of other potential witnesses should be a consideration as well. Asking the employee to write down what happened may help find inconsistencies. There may be a disparity between what the employee is willing to write and what he or she told you in the interview.

Investigators must determine employees' credibility. Interviews provide differing accounts and even conflicting versions of the events. Be aware that the issue is very personal to employees involved. Because of the personal and emotional nature of the issue, their individual perceptions of what happened may be clouded by personal interests, or if their jobs are on the line, they may even lie. Investigators must consider the credibility of the individuals being questioned during an investigation and use techniques (e.g., inherent plausibility, ability, demeanor, motive, motive to falsify, corroboration, past behavior and past accusations) in assessing credibility.

Step 7: Make a Decision

Through the investigation, the investigator must be careful not to jump to any conclusions before all the facts are available. Once the interviews are conducted, other necessary procedures, such as evidence collection, should be completed. Once any credibility issues have been resolved, the investigator will evaluate all the information for a formal recommendation. The investigator or member of management, as well as legal counsel, should make the final determination of any employment actions that are warranted based on the investigative report. The employer must consider all the parties involved as well as organizational processes, not just whether the accused is guilty, in the final determination.

Step 8: Closure of Investigation

Once a decision is made, the employer should notify both the complaining employee and the accused of the outcome. It is important to let the complainant know that the organization took the complaint seriously and took appropriate action. The organization must ensure the complainant agrees that he or she has been properly heard and understood, even if he or she is not in agreement with the results. The investigator should set a time frame to follow up with the complainant to ensure there are no other issues and that he or she is settling back into the work environment. The employer should encourage communication and follow-up until the complainant is comfortable again. Finally, the investigator should remind all parties to preserve confidentiality as appropriate.

When necessary, employers must take corrective action that is appropriate to the situation, such as discipline or even termination. The employer should:

    • Look at any damages incurred by the victim and discuss with legal counsel how to remedy those damages.
    • Determine if education, such as sexual harassment training or anger management training, would be beneficial to the individual or all employees.
    • Consider if the need exists to review, modify or redistribute workplace policies.
    • Determine whether a review of the investigation and complaint resolution processes is necessary.

Step 9: Develop Written Summary Investigation Results

If operating on the premise that every investigation of a serious nature could potentially be heard and reviewed by a court, the employer should consider preparing a final investigative report. The organization should keep a clear paper trail of the evidence, such as examining documentation of previous employee behavior and incidents. The investigator should have a clear record of everything done and any findings as well as other steps taken during the investigation. Employers should also document interviews with the accused, the accuser and witnesses. Investigators should ensure their notes from interviews are as factual as possible, contain as much relevant information as possible, are dated and indicate the duration and time of the interviews.

The final report should summarize the following:

    • The incident or issues investigated, including dates.
    • Parties involved.
    • Key factual and credibility findings, including sources referenced.
    • Employer policies or guidelines and their applicability to the investigation.
    • Specific conclusions.
    • Party (or parties) responsible for making the final determination.
    • Issues that could not be resolved and reasons for lack of resolution.
    • Employer actions taken.

The goal of the document is to ensure that if a court, jury or government agency were to review it, the reviewers would conclude that the employer took the situation seriously, responded immediately and appropriately, and had a documented good-faith basis for any actions taken during or as a result of the investigation.

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