Investigations in the workplace are inevitable. Employers must know the basics of conducting effective investigations to help their companies deal with workplace crises in ways that avoid and minimize liability. It is critical that employers are prepared to navigate these issues – all while remaining unbiased and objective.
Employers should have a clear internal investigation policy. It should dictate the appropriate personnel and procedures for internal investigations at your organization. An effective investigation follows an established framework; is fair and impartial; timely initiated and completed; thorough and accurate; and in line with applicable law and employer policy. Investigations that do not satisfy these requirements will not stand up to administrative or judicial scrutiny.
It’s important to recognize that not all complaints are formal. Be mindful that a complaint is not always the event that triggers a company’s duty to investigate. The duty arises when an employer observes acts or statements that suggest prohibited activity. An employee who feels he or she is being treated unfairly or inappropriately may utilize many different ways to express their grievances. It’s always best practice to not ignore something that you may not deem a “complaint.” At a minimum, take steps to gather additional information.
Further, in order to avoid (even the appearance of) bias, utilizing the appropriate investigator is crucial. Investigators should be neutral factfinders who are far-removed from all things related to the complaint. If it is difficult for the investigation to be conducted objectively using an internal source, consider using a third-party investigator.
Employers should not delay in commencing an investigation of employee misconduct. Initially, documents to consider obtaining include:
- Company rules, policies and procedures
- Memoranda or notes regarding the incident
- Time cards, logs or diaries
- Expense reports and receipts
- Prior complaints
- Personnel and security files
- Managers’ notes and files
- Samples of the employee’s and others’ work for comparison
- Electronic records: emails, voicemails, text messages, photos, and documents on shared servers, network files and personal hard drives
When preparing for interviews, an interview outline should thoughtfully be prepared. This can help ensure all important topics are covered and improve efficiency. Outline topics may include:
- Review of applicable company policies, including how they are communicated to employees, whether followed, etc.;
- Summary of the complaint, including how the employer received notice, as well as a chronology of important events;
- The names and identities of all relevant witnesses with notes on relevant background and relationships to complainant and accused;
- Relevant employment information of the complainant, the accused and the key witnesses;
- Specific information for each identified incident (who, what, when, where, why);
- Identity of other possible witnesses, new leads and new documents;
- A conflict check procedure to resolve conflicting witness accounts without identifying the witness; and
- Potentially related claims and relevant information.
All aspects of the investigation should be documented. This includes documenting compliance with your own policies. Another key document is a confirmatory memorandum. A confirmatory memorandum clarifies the scope of the investigation for all parties involved, including the complainant.
Once a thorough, unbiased investigation has been conducted, a thorough, unbiased report should be prepared. The complainant should be told generally whether or not the complaints were substantiated and whether remedial action was taken and the accused also should be told whether the results of the investigation substantiated the allegations, and if so, what remedial action will be taken.
As investigations are a key component in addressing and preventing harassment within organizations, examining your existing policies and adhering to the best practices for investigations is a key step in minimizing potential liability for your company. Should you have any questions regarding workplace investigations or any other labor and employment matter, please contact Ali Law Group.