CEDR Two Minute Trainer: Workplace Investigations

How to Conduct Workplace Investigations

There are many reasons an employer might need to conduct a workplace investigation. Common examples include:
• Harassment or discrimination complaints
• Workplace theft or embezzlement
• Alcohol or drug use allegations
• Other violations of practice policies or applicable law

For many complaints like harassment or discrimination, federal and some state laws require that the employer conduct a fair, timely, and thorough investigation. Other times, investigations may be warranted by fairness, to determine if an allegation or suspicion is true before taking action. The most important thing is that you first get the complaint in writing, and then respond promptly and reasonably, documenting every step of the process along the way.

Potential Laws to Consider When Conducting Investigations

• Health and safety laws – OSHA laws require employers to protect their employees by investigating threats of workplace violence, and taking reasonable action to prevent violence in the workplace to the extent possible.
• Anti-discrimination laws – The Civil Rights Act of 1964 (Title VII), the ADA, the ADEA, and their state equivalents generally require an employer to prevent and remedy discrimination in the workplace. If the discriminatory conduct is by an employee, you are liable whether you knew about it or should have known. But if the wrongful acts are by a supervisor, employers are held responsible regardless of whether it was known or not! So, sticking your head in the sand or ignoring complaints is not an option.
• Malicious persecution and intentional infliction of emotional distress claims can be made if the tone and nature of the investigation is unfair or biased. Never use accusations, slurs, or demeaning behavior in conducting an investigation.

Privacy Issues Can be Tricky

The general rule is that you must keep your investigation confidential to the extent necessary. That means that notes, witness statements, and other documentation should be accessed ONLY by those with a need to know, and be kept in a separate file from the individual’s primary personnel file.

Isn’t requiring the employees involved to stay quiet necessary to maintain confidentiality?

It may seem logical to require everyone involved to keep the matter confidential, at least until it is resolved. But you may be surprised to learn that it is against the law (the National Labor Relations Act) to have a policy requiring confidentiality in investigations, because it may interfere with an employee’s right to discuss workplace grievances with coworkers.

An employer may require confidentiality in an ongoing investigation on a case-by-case basis where the employer is able to demonstrate that “corruption” of an investigation would “likely occur without confidentiality.” Potential corruption includes cases in which (1) witnesses need protection, (2) evidence is in danger of being destroyed, (3) testimony is in danger of being fabricated, or (4) there is a need to prevent a cover-up.

Practically speaking, that means you must act quickly on these things to stay ahead of any rumor mill, and document the need for confidentiality where the above factors are a concern.

• Retaliation. You must ensure that the complaining party is not treated adversely by anyone during or after the investigation. This is true even in situations where allegations were settled or proven wrong. Retaliation claims can be made without proving any other base complaint.
• False imprisonment claims can be brought by an employee who feels that, during part of an investigation, he or she was restrained or confined by the employer to the point where they felt “imprisoned.” A company investigator must be very careful not to give the impression that the employee will be physically confined or restrained during an interview. Remind employees during an interview that they can leave at any time.
• Invasion of privacy claims are common. Whether there is a right to privacy depends on the context, and whether the employee’s expectation of privacy is reasonable. Generally the employee’s workspace is not so private, including desks, offices, company vehicles, and computer usage. Clear written policies help. For example, if you have a policy saying all workplace emails may be monitored, then there is no reasonable expectation of privacy. But having a policy that says you can search an employee’s car or personal belongings is probably not enough to overcome their expectation of privacy there. Always ask for consent to search personal belongings, or call the police to assist.

Investigation Protocol Step by Step

Step 1 – Identify your main goal, which is not to make the problem go away. Rather, the ultimate goal as an employer is to provide a sound, factual basis for decisions by management as to what remedy, if any, is required. The end result will be reliable documentation that will support management actions. A final investigation report should state the facts as they can best be determined, identify any misconduct, explain any remedial or disciplinary action to be taken, and include actions to be taken to prevent recurrence. It should provide the necessary information for anyone involved to challenge the result or reopen the investigation if needed.

Step 2 – Create a plan of attack. Move quickly to identify witnesses, and any electronic or written records that may be relevant. Keep in mind that waiting too long might mean loss of evidence or witnesses leaving, being unfairly influenced, or forgetting important details. If the accused party’s presence in the office could negatively affect the investigation being conducted, you may need to issue an investigatory suspension. This means the employee is temporarily suspended with or without pay, pending the outcome of the investigation. If the employee is exonerated, their pay should be reinstated for time missed.

Step 3 – Review and assess any documents that are relevant, such as memos, time cards, policies, personnel files, journals, and computer or software logs.

Prepare your questions for witnesses in advance. Keep in mind that you are NOT making accusations, you are conducting a review of the circumstances. Never ask questions you do not want the answers to, about matters that should not affect your investigation, such as personal questions about an employee’s family, financial circumstances, or personal health.

Step 4 – Conduct interviews using the following guidelines and techniques.

• Begin by thanking the employee for their participation and cooperation, and explain what is being investigated. Let them know that no decision will be made until all the facts have been gathered.
• Hold individual interviews in a private location to minimize peer pressure and maintain confidentiality.
• Start with general questions and then graduate to more closely-focused questions to gather the details.
• Repeat important questions using different wording, to see if the witness sticks with the same answer.
• Pay attention to witnesses’ body language.
• Use silence after a question as a technique to encourage reticent witnesses to start talking. People often feel a need to “fill in” periods of silence.
• Be ready with follow-up questions if needed.
• Understand that as the investigator, you must NOT allow personal feeling or prejudices to influence your actions, questions, or decisions.
• Even if you feel you have proven someone’s involvement beyond a doubt, step back and review your position.
• Have a witness present, and do not record the interview without the employee’s consent. Note that having a recorder can inhibit an employee’s responses. It may be better to have the employee put their statement in writing after the interview.

Step 5 – Conduct a full review of the evidence. If you need to do more investigating, do so. But if it will take a long time, let the involved parties know in writing that the investigation is underway, and when they can expect a response. Get a third-party opinion from CEDR or another neutral third party.

Step 6 – Prepare a summary report of your findings and conclusions. The report should contain a description of the situation, the witnesses and documents providing evidence, a summary of the information from each witness and document, and an assessment of the credibility of each piece of evidence and how it relates to the elements of the alleged problem. State the investigation’s   conclusions and recommendations in line with the factual findings.

Report the findings to the involved parties. Explain the Dispute Resolution Procedure if they remain dissatisfied. Finally, remind all supervisors, as well as the employee, of your non-retaliation policy, and make sure the person complaining is not penalized for having complained, regardless of the outcome of the complaint.

Three Things You Can Take Away:

1. Take all complaints seriously and document your timely and reasonable response.
2. You can’t restrict employees from discussing an ongoing investigation unless you have a permitted reason and it is clearly documented.
3. Get help from an outside professional to guide your process.

Need help? Members may call 866-414-6056 to speak with an advisor.