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How Should (and Shouldn’t) You Conduct a Workplace Investigation?

Hold your investigation process up to the legal microscope

Posted by Janette Levey Frisch on November 4th, 2015

How exactly should an employer, conduct a workplace investigation? Understand when and why employers should conduct workplace investigations is all well and good. We understand that who conducts the investigation on behalf of an employer can have significant ramifications; but how does an employer ensure that the investigation itself is thorough, uncover what really did (or did not) happen and aids in determining an appropriate response?

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First and foremost,  your investigation must be able to hold up under the legal “microscope”.  Therefore, each step or set up steps must meet that goal. Let’s assume you just received a complaint. What might you do? Here are some starting points:

  1. Review all applicable policies and procedures,  (If you do not have any, you should look into writing some ASAP!) to determine who to notify of the complaint, whether you need authorization before investigating, whether a senior manager must be present during any interviews, etc.
  2. Assess, from the nature of the complaint, how extensive or formal an investigation should be. If you receive a minor complaint, you may only need to discuss the matter with the employee and his/her supervisor. If you have received a serious complaint, such as harassment, you will likely need to conduct a full-scale investigation, which would start with interviewing the complainant, the alleged harasser and any witnesses. Some complaints may require police intervention.
  3. Gather and review all relevant documentation, (e.g., personnel files, performance reviews, disciplinary records and prior investigation files, if any) of all involved employees.
  4. Compile an interview question list. While in general, you will want to be consistent, asking everyone the same type of questions, you should also be flexible enough to allow for follow-up questions that might naturally flow from a witness’s answer.

It is now time to start interviewing parties and witnesses. What should you do now? Start by letting the interviewee know, in general terms, the purpose of the meeting.  Avoid too many specifics, or you risk giving away information you already know. You need the interviewee to tell you what s/he knows, not the other way around.  For example,  “I am conducting an investigation based on a charge by an employee. Your help is very important, and we will take all reasonable steps to be discrete with information you provide.”, or “I am investigating a complaint about ___________, and I would like to ask you and some other employees some questions.”  You should follow-up by impressing on him/her that s/he needs to give you full, honest answers, and assuring him/her that s/he will not suffer retaliation for truthful answers, but s/he may be disciplined or terminated for lying or providing false information.  Be ready to take notes during the interview, as many witnesses will be uncomfortable, and therefore less forthcoming if you use a tape recorder. If another investigator is present, one of you can ask the questions, while the other’s primary function can be note-taking.  Even so, the questioner should still take notes. Explain to the interviewee that you will be taking notes and why. Finally,  ensure that s/he understands what you have just said. You can ask, “Will you provide me complete and truthful answers to my questions?”

Your questions will, of course depend in part on the allegations being investigated. It is usually a good idea, though, to begin with general questions, and then get more specific and pointed. You may also want to save the tougher, more unpleasant questions for later in the interview, when the interviewee is likely to be less defensive. Here are some general questions you can use to begin:

  • What is the general atmosphere in your workgroup?
  • What communication style does the employee use? How about his/her supervisor and other employees?
  • What is the supervisor’s managerial style?
  • Are there any problems in the work group? If so, what are those problems?

At some point, however, you need to ask more specific questions.  Here are some ideas:

  • Has anyone complained about inappropriate behavior in the group?
  • Have you personally noticed or been offended by  inappropriate behavior? Can you describe what you have witnessed?
  • In your own words, what happened? When and where?
  • What did you personally see or hear?
  • Who else was present?
  • How did you respond at the time and since the incident?
  • Have offensive jokes or comments been made about people in the group? If so, who made them and what exactly was said?

What should you do if, after asking the more specific questions, the answers do not square with the charging employee’s allegations? Consider more pointed questions, such as “Last Tuesday, August 13 at about 2:15 p.m. did you notice anything in your work area that either you or another employee found disturbing?” or “Did you hear a conversation involving Employee X?” Continue asking questions until you feel reasonably sure that you have gotten the truth,  avoiding confrontational or accusatory questions.  If you are interviewing the accused party, and s/he claims the charging employee is lying, you can follow-up by asking “why do you think s/he would do that?”  When you are ready to conclude the interview, ask the interviewee  a) if s/he knows of anyone else who may have additional information; b) if there is anything else s/he thinks might be relevant to the investigation?; c) to please come to you if s/he recalls or learns anything new; d) if s/he experiences any kind of retaliation to please come to you; and e) if you believe that any witnesses need protection or any evidence is in danger of being destroyed or have similar concerns to please refrain from talking about the investigation until it is concluded (we will talk about this point in more detail next week)

Ultimately,  you will need to reach a conclusion. What if the investigation is a “he said/she said” scenario or is otherwise inconclusive?  In the first instance, you will need to consider whether each person’s version of the story is plausible, their respective demeanors and whether anyone has a motivation to lie, and then assess credibility. In the latter instance you can tell the complainant  that if s/he obtains new information s/he should come to you. These steps should protect the employer from legal liability. If you learn or have reason to believe that the complaining employee made a false accusation, consider appropriate disciplinary consequences, such as a write-up, suspension, probation, or, in serious cases, termination. If you find the complaint does have merit, then, of course, take immediate corrective action, but remember that you do not need to tell the complainant what that action is.

Finally, consider following up with the accuser a few days after you have formally concluded the investigation. If appropriate, re-interview him/her, to ascertain whether the situation has been appropriately remedied and that s/he has not suffered any retaliation—and, of course, document that interview as well!

Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.

 

Janette Levey Frisch
Janette Levey Frisch

Employment/HR Attorney

Employment and HR attorney Janette Levey Frisch has more than 20 years of legal experience, more than 10 of which she has spent in employment law. It was during her tenure as sole in-house counsel for a mid-size staffing company headquartered in Central New Jersey, with operations all over the continental US, that she truly developed her passion for Employment Law.

Janette works with employers on most employment law issues, acting as the Employer’s Legal Wellness Professional — to ensure that employers are in the best position possible to avoid litigation, audits, employee relations problems, and the attendant, often exorbitant costs.

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