Top Five Best Practices for Workplace Investigations

31 May 2016 Labor & Employment Law Perspectives Blog

A well-conducted investigation can reduce workplace conflict, promote job satisfaction and inclusion, and can also help shield you from legal liability. However, the converse is also true — a botched investigation can have enormous implications, both from a business and legal perspective. Fortunately, there are a number of simple steps you can take to ensure effective workplace investigations:

  • Plan each investigation first: After receiving a complaint, you should first plan the investigation — identify the appropriate investigators and interviewees, the questions to ask, and any documentation to collect and review. Of course, you can revise this plan during the investigation, but you should always give some advance thought to how to conduct the investigation.
  • Follow good interviewing practices: The quality of the information you receive depends largely on how you seek that information.
    • Do not disclose too much about the complaint under investigation — instead, simply explain that you are looking into an employee concern about the workplace.
    • Ask open-ended questions, and do not suggest answers or comment on an interviewee’s responses.
    • Be sure to ask whether there are additional employees with relevant information or if there are any documents you should review.
    • Document all of your interviews. Your documentation should be contemporaneous, complete, accurate, clear, factual, and free of any opinions, adjectives, speculation, or stray remarks.
  • Be careful 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 should assure the employee that the information will be limited to those that need it to make sure that the company conducts an appropriate investigation and takes appropriate responsive action. You should also assure the employee that the company strictly prohibits any retaliation.

Relatedly, employers often instruct interviewees that they must keep all information about an investigation confidential. This can be problematic. The National Labor Relations Act gives employees the right to discuss the terms and conditions of their employment, which can include information about an investigation. However, you may instruct employees to keep the investigation confidential if there are special circumstances requiring confidentiality. For example, confidentiality may be justifiable if you have reason to believe that there is a real risk of retaliation. If you decide to require confidentiality, you should document your reason.

  • Stick to a schedule: Ideally, you should create an investigation plan within a few days of receiving an employee complaint and should begin interviews a few days after that. The duration of an investigation will obviously vary depending on the specific complaint, but generally should not take much longer than a few weeks to a month — and that is for a very complex investigation.
    Make sure to check in with the complaining employee during this process — not to disclose substantive information about the investigation, but to provide a general update on the stage of the investigation and to ensure that the employee has not experienced 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.

By following these steps, you can ensure an appropriate, effective response to employee concerns, as well as manage the legal risk associated with potentially improper behavior in the workplace.

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