In March 2019, a former employee was awarded $1.7 million in a wrongful dismissal lawsuit. His employer terminated him, alleging he had committed fraud. However, the court found the employer couldn’t prove the allegations and that the countersuit they’d filed against the former employee was a form of intimidation.
Whether or not the employee had engaged in fraudulent behavior, this case proves how important a strong employee misconduct investigation can be. When you suspect an employee of misconduct, make sure your investigation is timely, well-documented and consistent with protocol. Use this 12-step guide for help.
Our eBook Conducting Effective Workplace Investigations details the steps you need to take for fair, thorough employee misconduct investigations. Download it for free here.
Whether you’re investigating fraud, harassment, IP theft or some other form of misconduct, the fundamentals of your investigation should be the same.
Number one, be prompt. A timely investigation shows your commitment to preventing retaliation and future incidents. Second, maintain confidentiality to dispel employees’ fears and protect your organization from lawsuits. Finally, be thorough and impartial. Treat the accused with respect, but do everything in your power to find the truth.
An employee misconduct investigation can be chaotic and stressful, especially if you are investigating a complex or sensitive issue. That’s why you need to keep the big picture in mind at every state.
Before you take a step, think about the purpose. Consider:
- Will this action help reveal the truth?
- Will it lead to a strong resolution to the issue?
- Could you defend it in court if the accused challenged you on it?
- Would documentation of this action help you investigate similar occurrences in the future?
A quick response shows the complainant that you’re serious about the investigation and gives the accused fair notice of the allegations. However, don’t go into an employee misconduct investigation blind.
Review your workplace’s policies, procedures and protocols every year (and following incidents). If you find something that needs updating, work with a committee to correct it. When you know what your organization stands for and how to react to situations ahead of time, your investigation will be well-organized from the start.
Now that you know where you’re going, you need to plan how to get there. Create an investigation plan to get your team all on the same page. Your plan may change as you collect new information or evidence, but having a framework keeps you on track.
The plan will help you answer the following questions:
- What is the nature of the misconduct?
- Should an internal or external investigator handle the case?
- What investigation methods should you use?
- What resources should you use for evidence?
- Are there any witnesses? When, how and why should each one be interviewed?
- When should tasks (e.g. evidence collection, interviews, investigation, reporting) be completed?
Next, take appropriate steps to prevent retaliation and further misconduct in the interim. You may need to change an employee’s work hours or area or even ask them to take paid leave. Whatever you do, keep the investigation confidential. Gossip poisons a work environment and can compromise the investigation’s integrity.
Remember that if a complainant is involved, only take interim actions that they approve. For the accused employee, you may assign changes to their work conditions. Just make sure you emphasize that these changes are non-disciplinary.
Correcting the issue shouldn’t be your only goal during an employee misconduct investigation. You should also strive to protect the complainant, especially in sensitive or violent cases. Offer them support. Allow them to take time off, work from home or switch their schedule to reduce contact with the accused person.
Don’t force them to make changes they don’t want to, though. A reporter shouldn’t have to suffer because of another employee’s actions.
While you need to protect your company and employees, don’t automatically assume an accused person is guilty. Employee relations expert Simon Sapper explains, “You can’t second-guess the evidence. Don’t leap to conclusions that may not be supported by fact.” If you find the employee to be innocent, conducting the investigation as though they’re guilty could not only damage relationships, but could even lead to a discrimination lawsuit.
“You need to investigate the specific complaint or allegation,” Sapper says. “The employee may be loathed, but you can’t let unpopularity persuade you to find against them on an entirely unrelated charge.”
From the complaint or discovery of the misconduct to the final investigation report, document everything thoroughly. This way, you won’t lose any important evidence or information. If the complainant or accused denied something that’s true and you couldn’t prove otherwise, create better documentation.
Strong documentation also protects your organization in the event of a lawsuit. If you take disciplinary action, even a verbal warning, document what you did and why.
Case management software makes this step easier. Interview notes, photo and video evidence and other related documents live right in the case file so you don’t have to hunt them down. Role-based access keeps everything confidential, too. Learn how i-Sight’s case management solution can improve your employee misconduct investigations here.
Sometimes an internal investigation isn’t appropriate. A number of factors go into this decision, including cost, timing and objectivity.
When you can’t find an impartial investigator in-house, or in legally complex cases, you may need to seek external help. External investigators or legal counsel ensure your investigation is objective, fair and free of conflicts of interest.
Did your investigation determine that the employee committed misconduct? Document next steps using our employee disciplinary action form template.
If your workplace is unionized, the accused employee has the right to union representation during interviews. Complainants have the choice to let their employer or the union investigate misconduct. Should they choose a union investigation, offer to conduct your own investigation if they don’t like the outcome.
Don’t keep accused employees or complainants in the dark during an employee misconduct investigation. Before you start the investigation, meet with those involved and detail the investigation process. Explain the steps and encourage them to ask questions along the way.
Provide regular updates about the status of the investigation to each party as it applies to them. When you’ve reached a decision, meet with the accused and the complainant (if applicable) separately to go over next steps.
To maintain the investigation’s integrity, be mindful of your verbal and body language during interviews. For example, don’t use language that assumes something to be true. Instead of asking “Did you see Joe punch Jack?”, ask “What did you see?”
Similarly, keep your body language objective. While it feels natural to smile or nod to show you’re listening, this could indicate to a witness that they’re saying something you want to hear. As a result, they might change their story to fit what they think is your approved narrative.
As you work towards a resolution, determine the credibility of the interviewees. Ask these questions when reviewing interview notes:
- Would the person’s story makes sense on its own?
- Did they exhibit verbal or physical signs of deception or truth?
- Is there evidence to corroborate their story?
- Does their story make logical sense?
- Are other interviewees saying the same things?
- Do they have any reason to lie?
- Does the accused have a history of similar misconduct?
Following the proper steps for an employee misconduct investigation can save you money, reduce stress and disruption and protect you from reputation damage. Be respectful, thorough and transparent to minimize the incident’s effect on your organization as a whole.