Workplace Investigations

Emily Kranendonk
Emily Kranendonk
Companies are faced with many legal risks. Workplace investigations take place when a problem, complaint or issues come up in the work environment. When a company fails to investigate, it opens the company up for a variety of legal risks and claims. This article covers what a workplace investigation entails and how to conduct one.

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What Is a Workplace Investigation?

Workplace investigations happen when there is a complaint of harassment, sexual harassment, misconduct, security breech and workplace substance abuse. Overall, workplace investigations take place when there is reliable information of serious wrongdoing or misconduct in the workplace. Workplace investigations are also in place to help protect the company, shareholders and employees. Investigations seek to understand what took place and gather evidence and facts through interviews.

Why Would a Workplace Investigation Need To Be Conducted?

Regardless of the seriousness of the complaint or incident, it’s always good to investigate.

  • It is important to be quick in taking action to show employees how serious the company takes these matters.
  • The way an employee’s complaint is handled can have an impact on whether or not an employee will take the matter further. Assure the employee that you will take them seriously and that the investigation will be handled discreetly and quickly.
  • Even though you may have employees who have brought many complaints to your attention, be sure to listen to them as if it were the first time. You will not want to miss something that truly needed to be investigated.

How Do I Conduct A Workplace Investigation?

Proper planning of the alleged investigation will help it stay on track. Take time to understand exactly what is being investigated, the privacy issues involved and what evidence that needs to be collected. The following process is a good place to start:

Step 1: Decide Whether to Investigate

Document the complaint from whoever is reporting the concern or incident. Be sure to thank the person for coming forward and sharing. We want people to feel safe in bringing up sensitive topics.

Step 2: Take Immediate Action, if Necessary

Once the company has decided to investigate, start the process immediately. This will help in getting more accurate information and keeping memories fresh on the minds of all the people involved.

Step 3: Choose the Investigator

Typically, the investigator is the HR Manager but it could also be a supervisor and manager. The HR team needs to remain objective. If they cannot, choose an appropriate management member or potentially an outside party to conduct the investigation.

Step 4: Plan the Investigation

Think about whether attorneys should be involved. If the situation is sensitive enough that it poses significant liability, then you may want to consult with an attorney before beginning an investigation. Conduct some research as to who is involved and decide the flow of interviews based on the order of the story.

Step 5: Gather Documents and Other Evidence

Review appropriate records, gather physical evidence like emails or texts that will validate the complaint, testimonials, etc. Review relevant company policies/rules that are in the employee handbook, anti-harassment and workplace violence policies.

Step 6: Interviews

In advance, plan the questions to gather information from the employees. Be sure to ask questions in a straightforward manner in order to get straightforward answers. Prepare a list of issues to address in the interview. Choose a location for the interview that is neutral and private. Only interview individuals who have pertinent information or insight. Maintain confidentiality throughout the process and ensure the employees that you will keep things private and confidential. Keep yourself in check to avoid being jaded or forming biased opinions. Clear away personal opinions that could cloud your judgment.

Step 7: Evaluate the Evidence

Look for the credibility of each person interviewed and if the major facts match. A way for someone to lose credibility is if their story changes throughout the investigation. Evidence that has been observed carries more weight than rumors or gossip. Consider the personal motivation of the witness and what the individual has to gain.

Step 8: Take Action

Once a decision has been made, inform all necessary parties. When speaking with the person who did wrong, treat them with respect and dignity. Communicate to the complainant letting them know that the company listened and took appropriate action in addressing the concerns. After some time has passed, check in with the complainant to make sure they are settling back into work and feel safe and comfortable at work. You will also want to make sure you have strong electronic/systems policies in place. These policies need to clarify to employees that all computer, phone, network, etc. systems are the company’s property. Explain the company has a right to monitor and access these systems any time without notice. Again know what your state laws find permissible.

Step 9: Document the Investigation

As you document the investigation you will want to keep in mind the potential of being heard and reviewed in court. Type up a summary of the facts resulting from the investigation. Be sure the following is included in the summary: incident, dates, people involved, factual findings and sources, company policies/guidelines related to the incident, conclusions, person responsible for the final decision, any issues that could not be resolved and company actions taken in response.

Examples of Workplace Investigation Questions

Here are examples of questions that you could use when conducting interviews and why you would want to ask these questions.

Example 1: Where and when did the action take place? Is it ongoing?

It’s good to start with the general and work toward the specific questions. Discover the facts by asking questions regarding what took place with knowing who was present, when and where it took place. These questions are to simply help find the truth.

Example 2: What happened next?

You do not want to ask leading questions. For example, “Is that when he or she touched him or her inappropriately?” When you ask leading questions, it undermines how reliable the information is. You want to allow the interviewee to openly share what they saw. Allow the interviewee to speak without being interrupted and give them time to talk.

Example 3: What action do you want the company to take?

This question allows you to understand what the reporting party wants to have happen. This does not mean the company will do exactly what they are asking, but it ensures that the company is listening. Remember you are there to listen and gain knowledge, not to disclose it.

What Are the Rights of an Employee?

When conducting workplace investigations, take time to understand the rights of employees. As HR you are there to help protect the company and the employee. This is critical because you want to minimize any potential legal claims or lawsuits. Here are a few employee rights to keep in mind.

Right 1: Employees Have a Right to Speak About Workplace Conditions

The National Labor Relations Act protects the rights of an employee to talk about workplace conditions. You will need to analyze the need for confidentiality of the investigation taking place to protect the credibility of the investigation and to protect those involved in it.

Right 2: Employees’ Privacy Rights

You will need to find a balance between investigating and taking action while taking into consideration an employee’s right to privacy and unreasonable invasion of privacy. It is important to find all relevant facts while protecting privacy rights. To aid with this process, write out a policy of how workplace investigations are handled so employees know what to expect. For example, communicate how you conduct surveillance or searches in the company. Usually, if you can show why it’s necessary to conduct a surveillance it is permissible.

Right 3: Legal Representation

The type of employment determines whether an employee who is being investigated has a right to legal representation.

  • Public Sector. Generally, public sector employees have the right to legal representation during the investigation.
  • Private Sector. Employers can decide whether or not they comply with the employee’s requests for legal counsel. They are not required by law to allow the employee to have legal representation.
  • Termination. Employees have the right to request legal representation and cannot be fired for requesting legal representation.
  • Internal Investigations. When an internal investigation requires strict confidentiality, you will need to consult with an attorney who has experience in handling these situations. The employee has the right to privacy and information that gets out could cause embarrassment to the employee and could cause a lawsuit.

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Questions You’ve Asked Us About Workplace Investigations

How long do workplace investigations take?
The seriousness of the complaint will determine the length of time an investigation takes. It takes time to gather and document evidence, conduct interviews, make decisions and write a summary of the investigation.Time is critical to investigations. Make the investigation top priority and act quickly to begin the process.
Does HR have to investigate a complaint?
Legally, a company is mandated to investigate harassment, discrimination, retaliation, safety and certain other types of complaints.Typically, HR conducts the investigation but if you cannot be objective in the investigation and leave bias out, it would be better to have someone else in upper management investigate. It is good to have someone who is well versed in employment law and trained to handle emotional and sensitive situations.
Can you investigate an employee without telling them?
Yes, you can investigate an employee without telling them in almost every case. Under federal and most state laws and if your company is in the private-sector or is non-unionized you can conduct almost any type of workplace investigation without notifying the employee. It can change when your company is in the private-sector and is unionized. Be sure to take a look at the governmental entity or collective bargaining agreement involved.
Emily Kranendonk
Emily Kranendonk

Emily is the HR Manager for PatientBond. She is the excited for the opportunity of creating an HR department with her current employer. Emily pursued a Master’s in Human Resources from USU and comes with 4 years of experience from various companies. Emily serves as the Director of Social Media for the Salt Lake SHRM chapter.

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