Failure to properly investigate wrongdoing in the workplace can be costly. In cases of theft or fraud, it's important to investigate to stop property losses. And in cases of alleged discrimination, a prompt investigation is critical. It's important to stop any inappropriate behavior and to prevent increased legal liability for the employer. But without some reference points, it's hard for employers to know how to prepare for and conduct an effective investigation.
At the annual labor and employment seminar presented by the law firm of Carmody & Torrance, LLP, attorneys Nick Zaino and Howard Levine outlined a step-by-step process to assist employers in conducting workplace investigations. Because each workplace situation presents a unique set of facts, Zaino and Levine warned employers against applying the process in a "cookie cutter" manner. Instead, employers can use the following ten steps as a general guide:
Step 1: Determine whether an investigation is necessary. Some federal laws require employers to conduct an investigation following a complaint of wrongdoing. Title VII, health and safety laws, and whistleblower laws are some examples. Even if an employee complains but then asks an employer not to take action, it's usually better to investigate to avoid liability than have to explain why an investigation wasn't conducted. The decision can depend on the seriousness of the allegations, the number of employees involved, and whether the full extent of the wrongdoing is known.
Step 2: Determine whether interim relief is necessary. Taking action before the investigation is complete may be necessary for health or safety reasons, or in situations that are very disruptive or emotionally charged. Temporary transfers, reassignments, or paid leave are examples of interim relief employers can use when necessary.
Step 3: Determine who should conduct the investigation. Generally, it's better if the investigator is someone not too closely involved in the situation (e.g., if an employee complains about co-worker harassment, it may be better not to have their supervisor conduct the investigation). Having two investigators is often helpful so that one person can take notes during witness interviews and the other can focus on questions and follow-up inquiries. The second investigator can also serve as a witness to confirm events or statements that occurred during the interviews.
Step 4: Preserve, obtain, and review all relevant documents. Investigators should ask witnesses if they have any relevant documents, including e-mails, expense reports, notes, surveillance camera tapes, and personnel documents. It's better to find out all the facts during the investigation than to be surprised by information that surfaces later during a lawsuit. Employers also need to be mindful of new federal rules that require employers to preserve electronic information that may be relevant to a lawsuit.
Step 5: Review potential legal issues. Employers should know whether the investigation is required by law. Once the legal issues are outlined, the investigation can be tailored to obtain relevant information. Employers may want to contact their legal counsel to make sure they've considered all areas of potential liability.
Step 6: Determine time and place to conduct investigation. The investigation should start promptly after the alleged problem is discovered or reported. Interviews should be held in a private area where witnesses feel comfortable about disclosing information. Obtaining as much relevant information as possible will help employers get a complete picture of the facts. For this reason, employers should consider conducting interviews away from the company premises.
Step 7: Interview individuals with knowledge of facts. It's a good idea to prepare talking points and interview questions in advance so that there's thorough coverage of the issues. The prepared materials can also serve as good documentary evidence of the investigation. Generally, it makes sense to start the interviews with the complaining employee to understand the problem and determine the scope of the investigation. Employers can request but should not require a written complaint or statement from the complaining employee. A written statement can help avoid problems if the person's story starts to change as events unfold. Next, investigators should talk with the accused wrongdoer and anyone who has any relevant information. A good approach is to ask open-ended questions that invite a person to provide information, listen carefully to the responses, and follow up with narrower questions. It's important to remember to ask each person to provide any related documents they have, including e-mails and other electronic documents.
Step 8: Prepare an investigation report. After carefully documenting the facts gathered during the interviews, the investigation report should summarize what happened, identify relevant policies and procedures, provide important factual findings, analyze inconsistent or conflicting information, and conclude by indicating any necessary corrective action. Employers should keep in mind that all the documents they create during the investigation may be subject to discovery if there's a subsequent lawsuit.
Step 9: Take appropriate action. Any corrective action needed should be tailored to the specific situation. Appropriate action can include: training, disciplinary action, creating new policies, or revising existing policies.
Step 10: Follow up. It's a good idea to follow-up with employees to let them know that the company took the complaint seriously and conducted a thorough investigation. Do not, however, disclose any corrective action taken against the wrongdoer that's private personnel information. Document the follow-up meetings and encourage employees to immediately report any additional claims or retaliation.
Effective workplace investigations can help employers address a problem early on and avoid costly losses. Taking the time to prepare for and conduct a thorough investigation will go a long way in helping employers avoid liability, improve employee morale, and keep their work environments productive.
More Resources for Handling Complaints and Investigations