workplace investigations

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All is well for months. And then out of the blue, I get a call. The conversation usually starts something like this: “We have an employee situation that’s been going on for weeks. Today something really bad happened. I think I need help.”

That’s when my HR investigative mind turns on, looking to understand who did what to whom and who the players are. When the root of the problem relates to allegations of discrimination or harassment, employers are required to conduct an investigation. In those cases, timeliness is key. Allowing an employee to stew in his or her discontent is bad for business. In doubt, employers are wise to start investigations promptly upon receiving a complaint.

Who conducts the investigation matters. Employers typically enlist human resources personnel, in-house counsel, outside counsel, or a third party investigator. To select the best investigator, consider the following:

  • Who is most familiar with the personalities involved?
  • Who understands the corporate culture?
  • Who is most familiar with the employment policies and investigation protocols?
  • Who will seem most credible and objective to the employees involved in the investigation?
  • Who has the most experience conducting investigations and knowledge of the relevant employment laws?
  • Who will exercise the most discretion and/or protect the confidentiality of the proceedings?

While internal investigators may offer cost-savings as well as institutional knowledge, external investigators often offer years of relevant expertise, unbiased objectivity, and (if outside counsel) may shield the investigation materials and findings from discovery.

Be cautious about confidentiality. Employees often ask whether the information they share will be kept confidential. You should not promise complete confidentiality because this is simply unrealistic. However, you can ensure that the sharing of information is limited to a limited number of those who are involved in investigations. You should also assure the employee that the company strictly prohibits any retaliation.

Reach a conclusion and respond appropriately: Once you have completed your investigation, you should reach a conclusion about what occurred and make a decision about the best response (such as additional training, a warning, termination). Although you may not want to disclose the specific action taken, you should inform the complaining employee that the company has completed the investigation and taken an appropriate response. You can discipline a complaining employee if you conclude that the complaint was knowingly false but do so with extreme caution to avoid a retaliation claim.

However, the best cure is prevention. People problems often develop over a period of time. Even when one event precipitates the ugliness, there are warning signs that “all is not well in the Kingdom of Denmark.”

Offering employees open lines of communication with supervisors or a trusted member of management is essential to air out grievances and uneasy relationships at work. When an employee approaches a member of management with a problem, this should be taken seriously, even if the employee is a known complainer.

​The objective should be to resolve the matter quickly and informally with the employee and the other parties. Most serious employee complaints stem from misunderstandings or interpersonal issues.