The need to investigate a workplace problem usually arises because the employer has received a complaint concerning employee misconduct. Complaints come to the employer’s attention in many forms and employers should train their personnel to recognize when a complaint is being reported. Not all complaints are reported through a formal employer policy or procedure; some are indirect, anonymous, or situations that are observed in the workplace.
While employers must investigate certain types of complaints, such as discrimination and retaliation, it is best to promptly and thoroughly investigate all complaints, particularly claims of harassment, drug and alcohol use, theft, threats, or violence. Sometimes, immediate action needs to be taken to prevent harm to the business or personnel. Suspension of the accused employee, with pay, while the employer investigates does not mean that the matter has been prejudged and it is important to convey that message.
Failure to investigate, or an unreasonable delay in conducting an investigation, can have serious consequences for employers. It is very important that the employer chooses the best investigator and initiate the investigation promptly. The investigator should have training and experience conducting workplace investigations and be impartial so that he or she can follow the investigation where it leads, even if it is to the CEO’s office. Under certain circumstances, an in-house investigation may be the most appropriate approach, however, there may be times when choosing an outside investigator is absolutely necessary.
The objective of the investigation is to determine the facts of the situation being complained about by conducting witness interviews, gathering information, and reviewing documentation and other evidence that corroborates witness statements. Finally, the investigator must reach a conclusion. Every good investigation begins with a strategy, follows a well-prepared plan and provides meticulous reports of the investigation to the employer.
Initially, the investigator will determine the scope of the investigation, which may broaden or become more restrictive as it proceeds. In most cases, the complaining employee is the first to be interviewed and, from his or her statements, the investigator will learn the names of additional witnesses that should be interviewed. The investigator will interview the employee accused of the misconduct and, in some cases, perform follow-up interviews with witnesses who previously provided statements to confirm facts or fill in any gaps.
When the investigator has evaluated all of the evidence, he or she will decide whether, by a preponderance of the evidence, or whether it is more likely than not, misconduct has occurred. The determination will be thoroughly documented in an investigative report that provides the details of the investigation, including the procedure used in conducting the investigation, relevant facts, allegations, responses, and findings.
Upon receipt of an investigative report that concludes misconduct has occurred, the employer must take prompt remedial action to avoid legal liability for the employee’s conduct. This may be in the form of disciplinary action, up to and including, discharge of the offending employee, depending on the seriousness of the wrongdoing.
But the matter does not end there. The employer must make sure that the problem has actually been solved by the remedial action. If it appears there is a systemic problem or inconsistency in the enforcement of policy, additional measures and training may be necessary.
Employers must continually strive to provide workplaces that are free from harassment, discrimination, retaliation, violence and other conditions that may give rise to employee complaints. The employer can take a proactive approach to creating a workplace culture that is intolerant of such misconduct through the training programs it provides its employees and the appropriate, consistent application of disciplinary action when misconduct occurs.
10 Tips for Workplace Investigations
In addition to setting the tone in the workplace, here are 10 tips employers should keep in mind when faced with complaints, however reported, from employees about workplace misconduct:
- Take all reports of misconduct seriously.
- Keep an open mind and do not come to conclusions about the validity of the complaint without an investigation.
- Remember to tell the complaining employee that he or she will not be retaliated against for making the complaint.
- Be sure to tell each witness that he or she cannot retaliate against the complaining employee for making a complaint and that he or she cannot be retaliated against for participating in the investigation.
- Do not fail to investigate, the problem may be more serious than it appears at first.
- Investigate promptly.
- Investigate thoroughly.
- Document all aspects of the investigation and any remedial and/or corrective actions taken.
- Review and update your policies and procedures.
- Provide appropriate training to all your employees, managers and executives.