8 Tips for Effective Workplace Investigations
Related Practice: Employment
Your Anti-Harassment and Anti-Discrimination policy must be working, because an employee has notified Human Resources about his belief that a colleague is creating a hostile work environment for another employee . . . Now what?
A prompt investigation will build employee morale by reinforcing your organization’s commitment to equal employment opportunity. From a legal standpoint, when the alleged offender is a coworker, as opposed to a manager who has the power to take or recommend tangible actions affecting the employee, investigating and responding appropriately to the complaint can provide the employer with a complete defense to any claims of discrimination.
What are the features of an effective workplace investigation? The EEOC’s Guidance on Vicarious Liability for Unlawful Harassment by Supervisors sets three high-level standards by which investigations will be measured: investigations should be prompt, impartial and thorough. Consider those standards and the following guidelines whenever you are faced with a new employee complaint.
Key Steps of a Workplace Investigation:
- Consider Interim Measures. Are there steps you should take to prevent continuation of the alleged conduct while you investigate and determine how to respond? For example, could one employee be moved to a different shift or a different work station? Should one employee be placed on an administrative leave? Is a report to law enforcement, a referral to your Employee Assistance Program or a mental health provider appropriate? Is there any evidence that must be collected immediately to prevent loss or destruction, such as security recordings or text messages?
- Select an Investigator. Sometimes a company’s internal Human Resources department can conduct the investigation and is well situated to do so because of easy access to witnesses and documents, as well as background knowledge to serve as context. On other occasions it is more appropriate to use an outside investigator, depending on the seniority of the individuals involved, severity of allegations, potential or actual litigation threats, or the need for specialized skills. An outside investigator brings neutrality to the investigation and offers the option of protecting the investigation with attorney-client privilege.
- Identify the Issues. Don’t let a relatively small employee complaint become the “Investigation from the Black Lagoon!” Too often, investigations grow in size and scope beyond what is needed to be “thorough.” The content and depth of the investigation will vary depending on the allegations. Sometimes, the “investigation” will be no more than one or two informal conversations. Keep it in perspective.
- Identify Witnesses, Documents and Other Evidence. The investigation may evolve as you learn new information, but at the outset, identify the sources — people, documents and things — that will provide information relevant to the inquiry, and plan a logical order to gather the information.
- Conduct Interviews and Examine Documents and Evidence. Don’t be afraid to ask the tough questions. Remember the issues you identified and stay focused on those items. Note any additional issues that arise and consult with management whether those issues should be added to the investigation or will be handled in a different way or by different people.
- Document Your Work. You don’t get credit for the homework you don’t turn in. By the same token, an investigation loses much of its value if the employer does not have a tool to remember the steps taken, the information learned and the findings reached. The level of formality in a summary of the investigation will vary with the employer’s management style, urgency and budget, complexity of the allegations, sensitivity of information at issue, and other factors. It may be as simple as a short email or result in a lengthy typed report, but some sort of record of the investigation should be preserved.
- Separate the Investigation from the Response. In some cases, the same individuals investigating the complaint will also decide whether and how to respond to an employee complaint. Even when the same person or group serves these dual roles, separate the steps wherever possible so that the decision is based on fact rather than prejudgment and the investigation retains its impartiality.
- Acknowledge and Respect Emotions. Remember that a workplace investigation is an unusual and stressful event for everyone involved, from the employee filing the complaint to the accused person to the coworkers who worry about the repercussions of participating in interviews or whatever discipline the employer imposes on the alleged offender. Throughout the process, treat everyone with sensitivity, which can take many forms: timing interviews to avoid overlap with work deadlines, providing updates on your process or anticipated completion when possible, conducting interviews in a discreet location. Showing consideration for people’s fears goes a long way toward earning buy-in and confidence in the process.
For specific questions about workplace investigations, please contact a member of the Stokes Lawrence Employment group.