Question:

I am a Human Resources Director, and I recently finished an investigation into a retaliation complaint regarding a particularly difficult employee. I want to ensure that our next investigation meets best practices requirements. Can you provide some guidance?

Answer:

Under both state and federal laws, employers have a legal duty to take “all reasonable steps” to prevent harassment, discrimination, retaliation, and other unlawful employment practices. Courts repeatedly have found that employer investigations of employee claims of unlawful behavior are an essential part of prevention. In order to be legally compliant, an investigation must be timely, conducted by a competent investigator, effective, and reasonable under the circumstances.
Workplace investigations require numerous difficult strategic decisions before, during and after the investigation. The following are some basic issues to keep in mind when evaluating when and how to conduct a workplace investigation.
When should an investigation be conducted?

  • When you receive a complaint of illegal or inappropriate activities, even if the complaint is informal and does not comply with your company’s policy for making complaints.
  • When you become aware of potentially illegal or inappropriate activities, even if no actual complaint is made.
  • Whenever further information is needed, regardless of who is complaining.
  • Especially for complaints of harassment, discrimination or retaliation, the investigation’s promptness reflects on its credibility.

Who should conduct the investigation?  In-house investigations by human resources professionals may be appropriate if the investigator is qualified, can complete the investigation in a timely manner, and there is no conflict of interest or bias involved. There are circumstances where an outside investigator is preferable or required. It is important to note that in California outside investigations performed for an employer, “concerning the employer’s employees involving questions of integrity, honesty, breach of rules, or other standards of performance of job duties” must be done by a licensed private investigator or attorney. If you hire an outside investigator who is not an attorney or licensed private investigator, you may be committing a misdemeanor, and you will be unable to exercise the attorney-client privilege to prevent the disclosure of evidence gathered in such an investigation.
Outside investigators are recommended when:

  • The complaint alleges harassment, discrimination or retaliation, or when subsequent litigation is likely.
  • The alleged bad actor is a high-level company employee, or a supervisor to the in-house investigator.
  • The circumstances may lead to the appearance of potential bias, including when a key party and the investigator have a prior history of friendship or conflict.
  • When you believe the alleged bad actor may be violent.

What are some best practices?

  • Be prepared. Define the scope of the investigation; gather and review the relevant documents and policies; and compile a list of initial interviewees and questions.
  • Ask open ended questions; seek facts; maintain neutrality and keep a professional tone and demeanor. Remain open minded and ask the witness for evidence, i.e. emails, photos, notes.
  • Document your interviews. Take detailed factual notes but do not include your impressions or make conclusions. Have the interviewee review and verify the accuracy of your notes.
  • Reach a conclusion. Determine whether a violation of company policy occurred or not, based on facts, or whether there is not enough information to make that determination. Do not draw legal conclusions. Communicate your findings to the alleged bad actor and the complainant.