Employment & Labor Insider

When employers think about internal workplace investigations, the focus is often on reaching the right outcome. That’s a good thing.

But recent litigation shows that the manner in which an investigation is conducted can receive as much scrutiny as the ultimate decision itself.

Employees have challenged workplace investigation procedures in court, alleging a range of deficiencies including investigator bias, inconsistent treatment of the parties, insufficient thoroughness, and inadequate documentation. Those objections may or may not have merit, but they demonstrate an important reality: a well-planned, well-documented workplace investigation can strengthen an employer's position as much as the ultimate outcome.

During a recent Constangy webinar on workplace investigation best practices, we examined these litigation trends and discussed practical strategies that employers can use to strengthen their investigation processes.

Effective workplace investigations typically share several common characteristics that apply whether the employer is investigating allegations of discrimination, harassment, retaliation, or other workplace misconduct.

Eight keys to an effective workplace investigation

No. 1: A neutral investigator

One of the most common ways to undermine a workplace investigation is to create the appearance that the investigator is biased, or that the outcome has already been decided.

Investigators should be able to evaluate the facts objectively. For example, the individual conducting the investigation should not also be advising the accuser or the accused. That could significantly undermine the impartiality of the investigation, even if it was otherwise conducted in good faith.

Particularly when allegations involve senior leadership or Human Resources personnel, engaging an outside investigator may help preserve the integrity of the process.

No. 2: An investigator with expertise

Employers are not expected to assign only veteran investigators to every complaint, and there are no legal requirements that investigators have any particular certification or training. However, the person conducting the investigation should be familiar with the organization's policies relevant to the matter under review and have a reasonable understanding of how to conduct witness interviews, obtain relevant documents and other information, evaluate credibility, reach reasonable decisions, and document findings appropriately.

If someone is conducting an investigation for the first time, appropriate training and oversight can help strengthen both the process and the credibility of the outcome.

No. 3: A prompt investigation

A prompt response demonstrates that the organization takes employee concerns seriously. Managers should be trained to recognize concerns that may warrant an investigation, even when employees do not specifically mention “magic words” such as “discrimination,” “harassment,” or “retaliation.”

The investigation itself should proceed as expeditiously as the circumstances allow.

This does not necessarily mean that every investigation begins immediately or concludes within a few days, or even weeks. Witness availability, document collection, or other circumstances may create legitimate delays. However, if there are delays, it is important to document the reasons. Those contemporaneous notes may be critical if the timeline is questioned later.

In some situations, an employer may reasonably determine that a concern does not require a formal workplace investigation. If so, documenting the rationale for that determination is critical.

No. 4: An investigation that adapts appropriately as new information emerges

The scope of the investigation should not be unduly restricted -- or expanded.

As interviews progress, investigators often learn about additional concerns, or may become aware of retaliation allegations or other conduct that warrants further review. The investigator should identify the new concerns and timely bring them to the attention of the employer. However, not every new concern should necessarily become part of the existing investigation. That could cause undue delays in resolving the original issue. Employers should thoughtfully evaluate whether additional allegations should be included in the original investigation, handled separately, or not investigated at all. They should also document the rationale for the decision.

No. 5: Consistent, justifiable decisions about witness selection

One of the most common workplace investigation questions is who should, and should not, be interviewed.

Investigators do not necessarily need to interview every person suggested by either party. However, they should carefully consider each recommendation and be prepared to explain why certain witnesses were interviewed while others were not.

The investigator should apply the same decision-making process to both complainants and the individuals who have been accused. That will help to reinforce the fairness of the investigation.

No. 6: Fair and unbiased interviews

The language that investigators use during interviews can influence whether the investigation is perceived as fair.

Questions should be neutral, open-ended, and designed to gather facts rather than confirm assumptions. Investigators should also strive to treat complainants, accused individuals, and witnesses consistently.

Differences in tone or approach can later be cited as evidence of bias if an investigation becomes part of litigation.

No. 7: Documentation

A workplace investigation may not be challenged until months, or even years, after it concludes.

By then, investigators may no longer remember the details. They may no longer even work for the organization. Comprehensive documentation helps to preserve the reasoning behind key decisions and demonstrates the steps taken throughout the investigation.

As a best practice, every workplace investigation file should document the following:

• The allegations being investigated
• The policy or practice implicated by the allegations
• The scope of the investigation
• The individuals interviewed
• The documents reviewed
• Any credibility assessments, where appropriate
• The significant investigative decisions and the reasons behind them
• The basis for the final conclusions

Good documentation tells the story of the investigation long after memories have faded.

No. 8: Confidentiality

Complete confidentiality is rarely possible, but employers should avoid unnecessarily expanding the number of people involved in an investigation.

Before interviewing additional witnesses, the employer should consider whether the needed information can instead be gathered through documents or other means. Limiting disclosure will help to preserve trust in the process and reduce the potential for workplace disruption.

A “reasonable” investigation is the goal

The lesson from recent litigation is not that employers must conduct perfect investigations.

Rather, courts generally look for workplace investigations that are conducted in good faith and reflect reasonable decision-making based on the information obtained through a reasonable process. A fair, thoughtful, and well-documented process can strengthen an employer's position if the investigation is later challenged.

To learn more, watch our webinar, Under the Microscope: How High-Profile Investigation Failures Shape Best Practices, for a deeper discussion of these litigation trends. You can also watch our Constangy Clips episode, '3 Best Practices for Investigative Reports,' for additional practical guidance, or visit Constangy's Workplace Investigations Practice Group to learn how we help employers conduct impartial, legally defensible workplace investigations.