Four common workplace investigation mistakes that plague employers
by Employers Council Staff
Employment Law Advice and Representation, Workplace Investigations
Workplace investigations are one of the most stressful tasks HR professionals face. Overseeing an investigation well can mean the difference between a smoothly resolved conflict and a costly, drawn-out mess.
“In theory, investigations sound very straightforward,” said Julia Paris, Employers Council Managing Attorney, Workplace Investigations. “You ask questions, you interview people, you collect evidence, you analyze it, you come up with an answer. But in reality, there are so many missteps you can make along the way that ultimately can make that answer less reliable and less defensible.”
Because the stakes are high in any investigation — with personnel decisions, agency penalties, court cases and other outcomes hanging in the balance — Julia advises organizations to avoid these four common workplace investigation mistakes:
Choosing the wrong investigator
“When I say the wrong investigator, I don’t mean someone who is not competent,” Julia said, although competency is the minimum requirement, of course. “Even people who have training may not be the best investigator [for a specific case].”
What might make someone the wrong choice for right now?
- They don’t have the time to conduct a thorough investigation. Investigations are time-consuming. If the investigator already has a heavy workload, they might not be able to conduct as thorough an investigation as needed, especially if they are getting pressure from the top to wrap a report up quickly.
- There are conflicts of interest. Even if internal investigators avoid any reporting conflicts of interest, the simple fact of working alongside witnesses can color an investigation. They might not ask awkward questions or push as hard as an external investigator would.
“It’s very normal for someone who works in an organization to want to avoid situations that are going to make their future work life uncomfortable,” Julia said. This is one reason many businesses and nonprofits choose to outsource workplace investigations.
- They are out of practice. The more you investigate, the better you are. If your internal investigator is rusty, it can affect outcomes down the legal road. “One thing a court or judge will look at when deciding whether or not to count [an investigation’s finding] is how much experience did this investigator have? Did they do it every day?” Julia explained.
Allowing investigation scope creep
When an investigation opens, witnesses may take the opportunity to bring up additional problems or issues. It can be hard to remain focused and arrive at a clear, distinct finding.
“Pretty soon, you will have 10 complaints where you just had one, and the issues are all over the place,” Julia said. “If you don’t have a process in place [to limit scope creep], it will compromise the investigation and make for a completely incomprehensible report.”
Whether you use an internal or external investigator, you should have a plan for how to handle complaints that fall outside the purview of the current investigation.
Losing control of difficult interviews
In the course of workplace investigations, you may come across witnesses who are hostile, belligerent, aggressive and/or manipulative. It can be a challenge to keep an interview on track with a game-playing interviewee intent on turning the tables on the investigator.
“It’s very easy for a difficult witness to get control of an interview,” Julia said. “You can tell that has happened in the report because you think, ‘They should have asked them this question and this question, but it seems like this interviewer ended this interview as quickly as possible.’”
Julia emphasizes the importance of neutrality, training and experience when dealing with less-than-cooperative witnesses. An impartial investigator is usually in a better position to establish control in the interview room. And preparation and practice are invaluable as well. Several of Employers Council’s investigators have backgrounds in federal and local law enforcement, where they had plenty of practice handling troublesome interviews, and the entire team has had extensive, on-going training.
Producing a substandard report
Although a workplace investigation report makes a factual finding, not a legal case, it might later be used to back up a legal position or defense.
“Our reports are very detailed, and they’re a little bit lengthier,” Julia said. “The reason for that is we have an eye toward making it defensible. As employment attorneys, we understand what an agency or a court is going to be looking for and defended those charges, so we know what they’re going to be looking for.”
A report that could cause an organization problems later on is:
- Lacking detail. The conflict isn’t thoroughly described or analyzed.
- Missing interviews. Not all named witnesses were interviewed and/or no explanations given for why witnesses weren’t able to be interviewed
- Has an unclear, illogical or missing analysis. It is not easy to follow how or why the investigator arrived at their finding.
- Biased or the appearance of bias. A biased investigation won’t hold up under scrutiny.
Employers Council’s workplace investigation reports use a standard template to ensure thoroughness and consistency and go through multiple layers of review.
“I am merciless when I’m reviewing reports,” Julia laughed. “I send them back as many times as needed until we get something that will stand up later.”
Do you need an experienced, impartial team to take on your next workplace investigation? Contact Employers Council to find out how our licensed investigators can help.