It has become increasingly important for human resource professionals and businesses owners to know how and when to conduct an internal (or external) investigation. There are many kinds of investigations, and the type and scope of the investigation varies depending on the complexity of the situation, the seriousness of the issues, and the individuals involved. Some circumstances warrant bringing in a neutral outside investigator while other investigations can be managed internally. Investigations, properly done, serve two important purposes: addressing workplace problems and managing risk.
What Triggers an Investigation?
A complaint of inappropriate workplace behavior made by an employee, customer, or even a competitor requires investigation. Complaints do not need to be written or even be called a complaint to require action. An employer or manager made aware of a potential violation of the law or company policy has a duty to investigate or to notify an individual designated as the recipient of complaints. Problematic conduct can come to the attention of management in many ways, such as reports by co-workers, rumors, social media posts, and direct observation of something that just seems “off.”
Who Conducts the Investigation?
Most investigations are conducted internally by a member of the human resource department or a risk management team depending on the structure of the business. The investigation is a quest for the truth, and if the company has an individual on staff who can be neutral and is trained in proper investigation techniques, having that person handle the investigation is usually appropriate. The investigation usually involves reviewing documents and policies, speaking to the involved parties and witnesses, and reaching conclusions as to whether there was wrongdoing. The investigator should not be the person charged with the responsibility to make disciplinary or remediation decisions.
Some circumstances, however, warrant hiring someone from the outside to investigate. The following should be considered:
Is the investigator free of bias, or do they have a stake in the outcome?
Is the investigator trained in interviewing techniques, compiling and organizing information, and making credibility determinations?
Do all the parties believe the investigator will be fair and trustworthy?
Is the accused a high-ranking individual in the company? Are the issues highly sensitive and might there be public interest in the outcome?
If answers to any of these questions suggest bias, a third party should conduct the investigation. This might be another company employee from a different branch or location or, more likely, an experienced attorney or human resources consultant. The investigator should not be a member of the company’s own law firm, but a truly independent outsider.
What Makes a Good Investigation?
Legally, investigations are required to be prompt, thorough, and impartial. The company should act quickly to determine the issue, select the investigator, and notify the parties of the plan of action. At times interim remedial measures, such as putting the accused party on paid administrative leave of absence or moving reporting responsibilities or office locations, involved may be required.
It is important not to punish the complaining party by taking these steps. In other words, that person should not be reassigned to a less desirable shift or location pending the outcome. The goal of these remedial measures is to keep parties and witnesses safe and free from retaliation.
Acting quickly but deliberately is important. Unnecessary delay could result in more harm. It could also compromise the integrity of the investigation Witnesses could discuss the facts among themselves, or potential witnesses could be threatened or encouraged not to cooperate. Important evidence, including electronic evidence, could disappear.
The thoroughness of the investigation is also a significant factor. The investigator should not be limited in terms of the witnesses he or she will interview. If the investigator believes that a person may have relevant information, the person should be interviewed. Nor should the investigator be limited in the issues to explore. Often parties or witnesses will disclose unexpected and tangential information on which the investigator should follow-up if it may lead to the discovery of additional or different wrongdoing. It is important to establish the scope of the investigation in advance, but it should be understood that the investigator will follow the evidence where it may lead.
The Report
Once an investigation is complete, the investigator should prepare a written report containing a detailed summary of the evidence and the factual conclusions reached. Some reports also contain recommendations for remedial action. Although the investigator will not determine whether an employee should be terminated or disciplined, he or she might be able to provide helpful recommendations to improve workplace conditions or relationships. They might include coaching or conflict resolution, facilitated discussion between the parties, team-building, training, or monitoring, especially if the accused will remain on staff. Even if the accused will depart, those who participated in the investigation may require some support.
All parties and witnesses should be told in advance that the investigation is confidential and that dissemination of the report will be limited to those who have a need for it. This is usually human resources and senior management. The parties will not see the report although they will hear the outcome. Reports should not be maintained in employee personnel files but in separate confidential files with limited access.
Common Investigation Mistakes
Failing to investigate a complaint or concern opens the company up to liability. A poor investigation can also cause significant problems. If the investigator’s hands are tied or if management influences the outcome, that will limit the value of the investigation. A poorly trained investigator who asks only leading questions and does not follow the evidence will not produce a useful product. Failing to instruct witnesses about confidentiality and retaliation is a significant mistake.
All witnesses should be told that they are protected from retaliation and that they should not retaliate themselves. They should also be made aware that even actions they do not intend to be retaliatory may be perceived that way by witnesses and get them into trouble. Many novice or poorly trained investigators conclude the investigation by stating that they could not make a factual determination due to conflicting evidence. This should be rare. Often, even in a “he said, she said” scenario, an investigator can determine credibility and decide the facts. Credibility can be determined not only by demeanor and consistency of statements, but also by other corroborating evidence such as timelines, electronic communications, and contemporaneous statements to others.
It is important to remember that an investigation is a valuable tool in determining the truth and restoring the workforce’s trust and belief that the employer will do the right thing when wrongdoing is uncovered, no matter who the wrongdoer is.
Charla Bizios Stevens, JD, is principal of Charla Stevens Consulting, providing training and coaching, strategic consulting, investigations, and mediation and conflict resolution services. Stevens practiced law in NH and Massachusetts for more than 37 years. For more information, visit charlastevensconsulting.com. She can be reached at 603-714-5413 or charla@charlastevensconsulting.com.
Current Issue - June 2024