Best Practices for Internal Workplace Investigations

Investigations, internal or otherwise, are necessitated for a variety of reasons and take many different forms. Internal complaints of misconduct, harassment, discrimination or ethical violations must be addressed timely and thoroughly. Failure to do so can lead to legal exposure, whistleblower complaints and even poor morale among your employees. It is always preferable to address complaints internally before an investigation is initiated by the Department of Labor (DoL) after an employee (current or former) goes to them because they believe you failed to take their concerns seriously. Likewise, you hope that the first time you hear about a complaint of discrimination or harassment is not when you receive a Charge of Discrimination from the Equal Employment Opportunity Commission (EEOC). Establishing an internal reporting and investigation process that ensures prompt and fair action will provide the assurances your employees need so they feel comfortable raising their concerns internally and will position your company to defend any potential complaints made to outside agencies.

In this article series, we will address the different types of investigations for which you should be prepared and best practices to ensure you are ready. We will begin the series with our suggestions for best practices to ensure an effective and compliant internal investigation process.

Outline for an Effective Investigation

Assess the Complaint

Hopefully you have an established process in place for receiving internal complaints that is open and transparent and provides more than one avenue for submitting concerns. Upon receipt of the complaint or concern, it should be initially evaluated by whoever you have designated to receive such complaints (Director of HR, Compliance Officer, etc.) This initial review of the complaint allows you to determine if it is an employee grievance that can be addressed through a simple discussion and /or counseling, or whether a formal investigation should be initiated. Either way, you should address the issue as soon as possible as delays tend to breed discontent and fear that management does not take employee concerns seriously.

Follow Up With the Complainant

Once you have evaluated the complaint, initiate a discussion with the complainant to ensure you have all of the relevant details. This initial discussion should include whoever your company has designated to receive complaints, such as your Compliance Officer, Director of HR, etc. as well as an additional witness for this meeting. It is advised to keep the “circle” tight at this point to ensure confidentiality and prevent unnecessary rumors. If the complainant did not provide a written account of their concerns, ask them to do so. Also take contemporaneous notes documenting what they tell you in this meeting. It is possible that this initial meeting will lead to the determination that a more detailed investigation is not necessary. Emphasize to the complainant that they will not be subjected to any retaliation for bringing forward their concerns.

Determine Who Will Conduct the Formal Investigation

If the initial meeting clarifying the employee’s complaint leads to the need for a more detailed investigation, consider who is best to serve as the lead investigator. This individual should be neutral, unbiased and have no direct involvement with the alleged issues. Make sure that your investigator has the necessary skills and knowledge to be effective. This may mean that you need to hire an outside consultant or attorney who is trained to conduct objective investigations. Someone who believes they are a victim of mistreatment, discrimination, harassment or other misconduct is more likely to cooperate with the investigator and provide candid responses if they view the investigator as independent without a hidden bias. Using a neutral, outside investigator also indicates that the employer is operating with good faith and sincerely seeks a fair and reasonable outcome. The investigator should be able to put those at ease who are being interviewed and have the ability to gather all facts necessary to accurately assess the complaint.

Make a Plan

The investigator should take some time to develop an organized plan outlining who should be interviewed, and the logical order for those interviews, the relevant documents to be collected and reviewed and whether the interviews should be recorded. A determination should also be made as to whether the complaint gives rise to the need to issue a “litigation hold,” which requires the retention of relevant paper and electronic records for an indefinite period to prevent the destruction, alteration or loss of evidence.

Gather Evidence

Collecting evidence is a critical step that involves conducting fair, unbiased and non-confrontational interviews and reviewing all relevant documentation such as emails, reports, and policies. Ensure that all evidence is preserved and handled with care. Of course, interviews should be held with the complainant, the “accused” and any witnesses. Sometimes it is necessary to conduct follow up interviews after facts come to light that were not known during an initial interview. Interview questions should be clear, and investigators should demonstrate that they are actively listening to and interested in the witness’s comments. Attention to detail and careful notetaking is also critical for a complete and accurate record. All witnesses must be reassured that they may share their “story” without fear of retaliation. Those whose alleged conduct is at issue should also be assured that there will be no prejudgment, and all facts will be reviewed carefully to ensure a fair outcome. Of course, confidentiality is crucial to protect all parties involved and to ensure the integrity of the investigation.

Analyze the Evidence and Prepare a Report

The investigator needs to review all testimony and documents to identify the facts. They should distinguish between what appears to be opinions and the objective evidence. Evaluate any inconsistencies in the evidence which may indicate a lack of credibility. Evaluation of witnesses’ demeanor and whether claims have been refuted or supported by other documentary evidence or witness testimony is necessary.

Investigation reports can take many forms and there is not a “one size fits all.” Sometimes they should be very brief, but other times they need to be more comprehensive and include an executive summary, methodology, findings, conclusions, and recommendations. Actionable recommendations based on the findings should be included. Sometimes the “action” is that no action is recommended. Other times the findings lead to the recommendation of disciplinary action, even termination. Other potential actions include additional training, separation of employees, changes in supervisors/chain of command, revision to policies, etc. The report should be written clearly and avoid using “jargon” so that all who read it will easily understand the findings. You should keep in mind that this report could end up as an exhibit in litigation, so you want to ensure all facts and recommendations contained therein are supported by the evidence.

Take Action

If the investigation results in findings leading to recommendations of corrective action, these should be addressed promptly and fairly. It goes without saying that you should not jump to conclusions. Make sure you have good, legitimate and non-discriminatory reasons for any recommended actions. If disciplinary action is taken, it should be done so in a respectful and confidential manner. Reassure the complainant that the matter has been handled and they should not experience further mistreatment in the future, but if they do, please report it immediately. It is important, however, to ensure the privacy of those disciplined thus you should refrain, to the extent possible, from discussing the specifics of any such action. Plan to monitor the implantation of corrective action and any policy changes or recommended training and assess the effectiveness of these actions.

Allegations of discrimination, harassment or other misconduct will quickly grow into expensive and disruptive lawsuits if they’re not handled promptly and skillfully. An effective and compliant workplace investigation is a significant undertaking, and a poorly executed investigation can cripple an employer’s legitimate, good faith efforts to resolve the problem and deprive it of an important affirmative defense if litigation becomes unavoidable. Of equal importance is that the failure to conduct a fair investigation will likely lead to loss of trust in management and poor morale throughout the company. A thorough process, free from bias and prejudgment, is essential for minimizing a company’s exposure and creating a culture of compliance and trust.

The Redstone GCI Human Resources Team is experienced and knowledgeable in conducting all types of investigations. With over sixty combined years of experience in this area, we are ready and available to be your resource as an outside, neutral and objective investigator.

Next in the Series: The Department of Labor Called – What Do I Do Now?