Workplace investigations often play a supporting role in employment discrimination cases but can actually take center stage when an employee or former employee alleges the investigation itself was flawed. The claim is called negligent investigation. The law of negligence holds employers to the standard of what a “reasonable” employer would have done under the circumstances, not necessarily what an exceptional employer would have done. Nonetheless, there are practices all employers should adhere to when conducting investigations if they wish to avoid exposing the company to the risk of a negligent investigation claim.
First and foremost, all employers should have an open door policy and complaint procedure, encouraging employees to come forward with incidents of inappropriate behavior they experienced or simply witnessed. Employers should have a complaint procedure in place that provides a primary point of contact and an alternative point person(s) should the complainant feel uncomfortable approaching the primary contact. The policy should assure employees a prompt response to their complaints and assurances that the company prohibits retaliation for complaints legitimately brought under the policy.
When conducting investigations, employers must respond promptly. Unnecessarily delays invite increasingly flawed memories of what actually transpired and may allow individuals to conspire to tell the same untruths. Delays also communicate to the complainant that the allegations are not necessarily a priority and could lead the complainant to reach out to their own legal counsel or a government agency like the U.S. Equal Employment Opportunity Commission instead.
Ideally, the employer should take the complainant’s statement immediately or within a matter of hours—not weeks. Assure all those interviewed that the employer will keep the matter as confidential as practicable (never assure absolute confidentiality) and that retaliation by anyone is absolutely prohibited. The employer will want an investigator and management witness present during all interviews and should, in the beginning, ask the complainant open-ended questions regarding what happened. As the complainant answers, the investigator should ask for as much detail as possible to give context for subsequent interviews with witnesses and the accused. As for the ordering of interviews after the complainant, try to interview the witnesses first to determine if the complainant’s story is corroborated. Components of the complainant’s story that have been corroborated can thereby be emphasized when interviewing the accused. And although the accused is likely the last person investigated, statements he or she makes may necessitate follow-up with the complainant or other witnesses. Follow-up interviews are not at all a sign of a poorly conducted first interview; they are frequently conducted and often necessary. If any parties wish to change their original stories, allow them to add addendums to their statements but not make changes to them.
Review all witness statements when determining whether there is any substance to the original complaint. While workplace investigations are not criminal forums and do not require proof “beyond a reasonable doubt,” the employer should ensure there is substantial evidence to support the complainant’s story, especially if the conduct in question is of the career-ending variety. Even if there is not enough to warrant sanctions to include termination, there may be enough to justify a warning about how the accused’s actions are reasonably interpreted by others. Finally, never share the results of disciplinary action you take with anyone else, even the complainant. All the complainant needs to know is that the company took appropriate action in light of the circumstances.
Finally, never do investigations in house if any of the following apply: (1) you cannot complete the investigation timely because the number of individuals involved is too great; (2) you do not have the expertise to evaluate, say, complex financial practices for possible wrongdoing; (3) the accused is someone with supervisory authority over you, opening the door for allegations of undue influence; or (4) the complainant has lodged a complaint(s) with possible criminal implications. Moreover, if you’ve been fortunate enough in your HR career never to have conducted an investigation yourself, consider shadowing an experienced investigator the first time you’re asked to do an investigation.
Article by Mark Nelson, J.D., Senior Helpline Consultant - Employers Group