Employers are obligated by a variety of local, state and federal laws to investigate a range of complaints in a timely manner. Employers are further obligated to take any appropriate corrective action to ensure that illegal actions and behaviors cease immediately. It is therefore vital that employers conduct a thorough, well-documented investigation into the alleged action(s).
As potentially disruptive as investigations can be, they must be prompt, thorough and effective to ensure everyone’s protection. There are several steps that should be taken as soon as the employer receives a verbal or written complaint.
The employer must protect the confidentiality of employee claims to the best of its ability, but should never promise absolute confidentiality to any party involved in the investigation. The employer should explain that, to conduct a prompt and effective investigation, some information will be revealed to the accused and potential witnesses, but only on a “need to know” basis.
Provide Interim Protection
An employer may need to take immediate measures for the protection of the accuser or the alleged victim, such as separating the alleged victim from the accused to guard against continued harassment or retaliation. But tread carefully, because actions including involuntarily transfers or burdensome changes could appear to be retaliatory and result in a retaliation claim.
Select the investigator
Employers generally use the resources of experienced HR professionals, internal security, legal counsel (inside or outside) or a third-party investigator. Regardless of the category chosen, the appropriate investigator should be able to investigate objectively without bias, have no stake in the outcome, and have skills that include prior investigative knowledge and working knowledge of employment laws. He or she should have strong interpersonal skills, attention to detail and the right temperament to conduct interviews.
The investigator must be in a position to maintain confidentiality, be respected within the organization because his or her conclusions will be used to make a determination, have the ability to act as a credible witness and, if they are internal, have the likelihood of continued employment with the company.
Create a Plan for the Investigation
A complete plan for the investigation should include an outline of the issue, the development of a witness list, sources for information and evidence, interview questions targeted to elicit crucial information and details and a process for retention of documentation such as interview notes and e-mails that could be treated as evidence.
The time it takes to complete a thorough investigation will vary depending on the circumstances. It could take several days, and sufficient time should be allowed to interview the accuser, the accused and any witnesses; flesh out additional details; review the findings; conduct follow-up interviews; discuss proposed resolution with upper management; decide on final resolution; create any relevant disciplinary actions, warnings or memos; hold separate closure meetings with the accused and the accuser; and write investigation report/summary.
Develop Interview Questions
Questions should be developed well before beginning the interviews, though additional questions will be added as more evidence and information is revealed. Good questions are relevant and designed to draw out facts without leading the interviewee; they should be open-ended to elicit as much information as possible.
At the outset, the investigator should inform all parties involved of the need for an investigation and explain the investigation process. While it is necessary to stress confidentiality of the investigation process, do so carefully, as this can be seen as interference with employee rights to engage in concerted activity under the National Labor Relations Act (NLRA).
The investigator should focus on being impartial and objective to gather and consider relevant facts. The investigator should never offer any opinion or say anything to interviewees that will raise concerns about his or her impartiality.
Make a Decision
Once the interviews are conducted, other necessary procedures, such as evidence collection, should be completed. The investigator or member of management, along with legal counsel, should make the final determination of any employment actions that are warranted based on the investigative report. The employer must consider all the parties involved as well as organizational processes, not just whether the accused is guilty, in the final determination.
Closure of Investigation
It is important to let the complainant know that the organization took the complaint seriously and took appropriate action. Once a decision is made, the employer should notify both the complaining employee and the accused of the outcome. The organization must ensure the complainant agrees that he or she has been properly heard and understood, even if he or she is not in agreement with the results.
Develop Written Summary Investigation Results
The employer should consider preparing a final investigative report in case the matter is escalated. The organization should keep a clear paper trail of the evidence, such as examining documentation of previous employee behavior and incidents. The investigator should have a clear record of everything done and any findings as well as other steps taken during the investigation. Employers should also document interviews with the accused, the accuser and witnesses.
The final report should summarize the incident or issues investigated, including dates; the parties involved; key factual and credibility findings, including sources referenced; employer policies or guidelines that apply to the investigation, specific conclusions; the name of the party or parties responsible for the final decision; a list of any issues that could not be resolved and the reason(s) for that; and the employer actions taken.
The goal of the document is to ensure that if a court, jury or government agency were to review it, the reviewers would conclude that the employer took the situation seriously, responded immediately and appropriately, and had a documented good-faith basis for any actions taken during or as a result of the investigation.
The EEOC has a wide range of resources to aid employers, including sample investigation interview questions for the accuser, the accused and any witnesses.
For more guidance on conducting a workplace investigation, contact the Economic Development Collaborative-Ventura County. Conveniently located in Camarillo, California, we’re here to help!