Introduction
The modern workplace is a complex setting, rife with professional and personal relationships and interpersonal dynamics. Almost inevitably, these relationships and dynamics will result in complaints, grievances, or allegations of misconduct or even illegal behavior by a colleague, supervisor, subordinate, or even visitor to the workplace. The alleged misconduct or behavior might include charges of sexual harassment or discrimination, allegations of financial impropriety, accusations of employment or labor law violations, or suspected employee policy violations. How a company handles these issues when they arise may determine the company’s legal liabilities and defenses and will say much about the company’s human resources capabilities.
In some circumstance, one of the first actions that a company should take is to conduct a workplace investigation of the issue. A workplace investigation is a review of allegations or suspicions of misconduct, poor performance, or other issues in the workplace for the purpose of determining whether the allegations or suspicions are substantiated and what response should be taken. Responsible companies conduct workplace investigations for a variety of reasons. First, a quality investigation helps the company discover the truth and get to the root causes of problems that might be distracting employees from their duties and wasting the company’s resources. Second, a good investigation will demonstrate the company’s sense of fairness, that it takes issues seriously, and that it responds to issues only after a thorough gathering of facts. Third, in some cases, conducting an investigation is a legal obligation or is part of building a legal defense.
Although the nature of each workplace investigation will vary depending on the facts and circumstances of the issue, there are typically ten steps that companies and investigators should follow to help ensure an effective and efficient investigation and outcome.
Ten Steps to an Effective and Efficient Workplace Investigation
First, the company should decide whether any immediate or interim steps should be taken in response to the complaint, grievance, or allegation. Perhaps an alleged wrongdoer needs to be placed on leave while the matter is investigated, or perhaps law enforcement agencies should be notified. In most cases, the company should communicate with the complaining party or victim to provide assurances that a prompt and thorough investigation will be conducted and that the company will not retaliate against employees for making good faith reports about workplace issues.
Second, the company should decide whether the allegation merits an investigation and, if so, the scope and formality of the investigation. For example, an allegation by an employee of sexual harassment by a supervisor may warrant a complex and formal investigation, whereas a suspicion that an employee has been tardy to work may warrant a more simple and informal review.
Third, if an investigation is warranted, the company should select an investigator. Should the investigation be done in-house, or should the company retain an outside, independent investigator? What type of experience, expertise, and personal characteristics should the investigator have? Should the investigator be an attorney, accountant, human resources professional, or other person with specialized expertise? The answers to these and similar questions depend on the facts and circumstances of the issue being investigated.
Fourth, once an investigator is selected, the company should allow the investigation to proceed without micromanaging the investigation or investigator. Although it might be appropriate for the company to provide the investigator with background information and leads, it is not appropriate to dictate the methods or outcome of the investigation.
Fifth, for the investigator, the next step is to prepare for the investigation. Proper preparation includes reviewing background information about the matter and people being investigated, becoming familiar with applicable policies and laws, requesting that the company provide relevant documents, scheduling interviews with people who are involved in the matter, and scheduling site visits if appropriate.
Sixth, the investigator should conduct interviews. Interviewees include the person who lodged the complaint, grievance, or allegations; the alleged wrongdoer; witnesses; and other people who may have knowledge of the issue or similar matters. In some cases, it might be necessary to re-interview certain individuals. It is important for the interviewer to be experienced and skilled in interviewing people, actively listening, and gauging credibility.
Seventh, the investigator will prepare a report. In the report, the investigator should describe any relevant background information, summarize the documents that were reviewed and the interviews that were conducted, set forth the investigator’s factual findings, and explain the investigator’s ultimate conclusions. In some cases, the investigator will also make recommendations for how the company should proceed.
Eighth, the company will assign personnel to receive, review, and consider the investigator’s report. This person should have the knowledge and authority to process and deal with human resources-related issues. The person may be called upon to accept or reject – in full or in part – the investigator’s findings, conclusions, and recommendations.
Ninth, the company should take action. The action should be consistent with the investigator’s report (unless the report was rejected for sound reasons) and should be consistent with applicable policies and laws. If disciplinary action is taken, the type of discipline should be proportionate to the offense and should be reasonably calculated to stop the misconduct or poor behavior. If the investigation found no wrongdoing, the person who made the initial report should be so notified.
Tenth, the company should follow up by monitoring the situation for compliance, preventing retaliation, and minimizing the risk of new incidents of misconduct or poor performance.
Conclusion
Employee grievances, complaints, and allegations of misconduct or illegal behavior are common in the modern workplace. By conducting efficient and effective investigations, companies can help reduce the legal liabilities that often arise from such matters.