Investigation Consulting and Services
In the unlucky event that you must conduct a workplace investigation, Employers Council has myriad resources available to assist you. Employers Council has attorneys trained to conduct harassment investigations and provide guidance to members. We can also help you guide your own investigations, but in complex situations when there are greater threats of liability, it is useful to have an experienced and impartial party to investigate.
Should the facts of your situation dictate that an outside company perform your investigation, Employers Council is well-equipped to handle all aspects of the internal investigation for you. Once the investigation is completed, we help employers determine the appropriate course of action.
Internal Investigation Training
Employers Council offers classes to help employers conduct their own internal investigations. We currently offer one- and two-day workshops throughout the year in Denver and Scottsdale.
Our one-day course, Investigations in the Workplace, covers the basics - addressing complaints, determining scope, interviewing, documenting, and presenting and evaluating findings to support informed decision-making. Our two-day course, Investigations in the Workplace: Two Day Workshop, is more hands on. It is a combination of interactive role playing, mock investigation practice, lecture, and group discussion. These workshops will help you hone all of your investigation skills.
You want to create an environment where employees feel comfortable bringing situations to your attention. Learn to resolve these issues before productivity and professional development is affected and before legal counsel is involved. No employee should get in trouble for coming forward – that would be against the law.
Conducting a Workplace Investigation
Conducting an investigation is one of the more difficult jobs for Human Resources. Investigations challenge HR professionals to be impartial while asking uncomfortable questions to colleagues they may know and interact with on a daily basis. It is important that all parties involved remain professional, and that the investigator be respected.
When a company employee submits a complaint, the employer should be responsive and begin the investigation in a timely manner. Resolve the issue before it becomes widespread, and protect the confidentiality of all parties involved.
In order to protect employee relations and minimize the legal counsel involved, it is important that employers solidify workplace policies and investigation procedures prior to issues arising. Policy helps make sure that emotions do not get involved in the decision making, and they set the standard for workplace compliance. Having a set procedure in place helps with the timeliness of the investigation.
Employers also should choose the right person to conduct the investigation and have a set practice for gathering evidence and information. HR staff are the most common people chosen for investigations because they have specialized job training and interpersonal skills, allowing them to remain impartial in serious situations. When an employer does not have an internal employee with these qualifications, third-party investigators are introduced. No matter if the employer has an internal or external investigator, the investigation should be professional, taken seriously, and be conclusive.
Employees are more savvy regarding civil rights laws than ever before and are quick to capitalize on any misstep. It is important that managers and employees are trained properly to avoid internal investigations all together – consequences can be significant for your organization’s professional development.
Types of Workplace Investigations
Employers have a legal duty to conduct investigations involving civil rights, such as harassment (sexual or otherwise), discrimination based on protected classes (sex, race, disability, etc.), safety violations, retaliation, and others. (Note that Employers Council members have access to more than 400 detailed white papers, several of which address all aspects of conducting workplace investigations.) While not every complaint imposes a legal duty to investigate, you should have a policy in place regarding what is and is not investigated to avoid having to make decisions as issues arise.
If an employee / employer is sexually harassing a co-worker, proper investigation is needed. Sexual harassment in the workplace is a serious problem and should not be ignored. When an employee is experiencing unwelcome sexual advances or conduct, the workplace becomes an intimidating and hostile place to be for that employee. Sexual harassment can range from inappropriate touching to under-the-breath comments, and it can happen to both men and women.
Workplace violence is abuse or the threat of violence against workers. It can range from verbal threats or abuse to physical assaults and injury. Workplace violence is a growing concern for employees and employers nationwide.
Workplace accidents can occur any time, and on accident. Carelessness, improper training, or negligence can lead to employee harm or injury. An employer should take all possible steps to protect their workers by preparing for the unexpected.
Unlawful discrimination in the workplace is unequal treatment of employees based on a status. This includes race, color, religion, sex, age, disability, marital status, and more. All workers should be treated equally, and employees and employers should be aware of their and other’s treatment towards each other.
Cautions in Conducting Workplace Investigations
Not every complaint requires an investigation, but it is still important to have a policy in place to determine what is and what is not investigated. An investigation rigged to reach a pre-determined conclusion or otherwise conducted in bad faith will not satisfy the employer's obligation.
It is important to appreciate that workplace investigations are often disruptive to some degree. The successful investigator strives to limit disruption to the extent practicable without lessening the integrity of the investigation. However, once you decide to investigate, it is important to select an investigator who is objective, neutral, and dedicated to a prompt and thorough assessment of the issues.
In determining whether, and what, to investigate, employers should keep in mind the distinction between "fact-finding" and "investigation." Fact-finding is a subset of investigation much like harassment is a subset of discrimination.
Many Human Resources representatives are called upon to conduct “investigations" within strict parameters. These individuals are directed, most often by general counsel, to conduct only fact-finding without credibility assessment and without reaching conclusions. Similarly, a supervisor or manager might determine to "investigate" by collecting available factual information or conducting employee interviews regarding a particular situation. This is simply part of good performance management and preparation for documenting disciplinary action. These efforts, in both situations, do not extend to a resolution of conflicting information based on credibility assessment or a communication of findings. In the absence of these two functions, these situations describe simple fact-finding.
By comparison, a workplace investigation is fact finding, combined with the duty to make credibility assessments where necessary and practicable, toward reaching specific conclusions regarding individual allegations within a defined scope of issues.
Three components appear in this definition of an investigation: 1) fact finding, 2) credibility assessment, and 3) making findings / drawing conclusions. Each of these pieces is "related to individual allegations within a defined scope of issues." In other words, these investigation components follow the "scope" of the investigation. Successful, effective investigations most often occur when the employer recognizes the importance of developing and maintaining a clearly defined scope of issues for the investigation. In a sexual harassment case, for example, this scope may be limited to an employee's identification of specific instances of conduct purported to represent the harassment.
This distinction between fact finding and investigation is not merely academic. Rather, it guides and informs an employer in determining what sort of response is necessary to particular workplace issues.
While every complaint is unique, having a well-defined, consistent process in place can ward off lawsuits. Treating employees with respect during the process has additional rewards: building employee trust and creating a better work environment.
In most investigations, interviews are conducted to discover evidence about the situation. Know what you are doing when conducting an investigation - the more information you can get from each interviewee, the easier it will be to figure out what happened and why.
In an internal investigation interview, make sure to keep an open mind. More often than not, investigators don’t want to believe that their coworkers could engage in misconduct, so they deny the allegations, while others believe that an employee would not complain without cause. Investigators must not make assumptions – don’t reach any conclusions until you have gathered and evaluated all of the facts.
At the beginning of the investigation interview, ask easy questions. The interviewees will probably be nervous or defensive, and easy questions will help ease their mind. Ask basic background questions about their job, professional development, daily schedule and so on. You will be able to see the employee’s body language when they are comfortable, which will help you judge their credibility when you ask the tougher questions. Throughout the investigation interview, take detailed notes, and keep your opinions to yourself. Be sure to follow up an interview by asking interviewees to contact you with new or additional information.
Frequently Asked Questions about Workplace Investigations
What do I do if the workplace investigation reveals that it is one person’s word against another?
This is the “he said-she said” scenario. Carefully pursue and identify more facts and history to see if you are persuaded that one party is more believable. Credibility assessments in investigations are difficult, but necessary - the only thing the investigator knows for certain here is that someone is lying.
Should I suspend the accused while the investigation is ongoing?
The short answer is, “No.” This is because protocol should not dictate that the accused employee should be suspended or otherwise removed from the workplace as a matter of form. However, prior to conducting an investigation an employer should always consider the need for precautionary measures to protect the interests of the complainant, other employees, or the employer itself during the investigation. Look for alternatives which would least disrupt the work environment. Removal of an accused is sometimes appropriate, for example, where the complaint concerns violence or serious misconduct that is initially well supported by current evidence.
When is it time to seek out a mediator?
- Has the relationship in question begun to leak into the department? Team? Organization?
- Has one of the parties gone to HR or their boss and requested a mediator or third party?
- Has work been interrupted? Absences increased?
- Are silos forming where employees are taking sides?
If you can answer “yes” to one or more of these questions, calling a mediator might be an effective next step.
Once we receive a complaint, should we share that with the accused?
The complaint itself should not be shared with the accused. When the accused is interviewed, he/she must be given an opportunity to respond to each and every allegation, but that does not necessitate sharing the written complaint (if one exists) or a written statement. Likewise, it is important to resist demands for information or sources of information. At the end of the inquiry, what matters is whether the accused did or said what he/she is accused of doing or saying. It does not matter how the information was discovered or who brought it to the company’s attention.
Do I have to give a copy of the report to the complainant or the accused?
We do not recommend the report be shared with any participant in the investigation. Reports should only be shared with fellow decision makers on a “need to know” basis. Sharing the reports or statements of other participants can increase the risk of retaliation and can add fuel to existing disagreements, so this portion of investigation records should be kept as confidential as possible.
Where should we keep investigation records?
Investigation records should be kept separate from personnel files. In most states, employees are entitled to see a copy of his/her file. Therefore, to preserve the independence of the investigation, these records should be kept separate and apart from personnel files. If an employee is disciplined as a result of information discovered during an investigation, that discipline action can be placed within the personnel file with the remaining investigation records kept separate.
What should we do about character witnesses?
We do not recommend that character witnesses be interviewed at all. This is true for witnesses identified by either the accused or complainant. By remaining consistent with all parties, this solidifies a consistent, objective process and decreases any claim of bias. In addition, character witnesses do not provide relevant information to a factual inquiry. Instead, you run the risk of opening a popularity contest and instead you need to be focused on whether the allegations are founded or not.