When you’ve identified a potential issue in the workplace that needs to be investigated, what you do, or don’t do, right from the start can have significant repercussions later.
Here are six important steps and guidance to help you launch and handle investigations appropriately:
1. Follow Current Policies
If your company has existing policies and procedures in place for handling different types of misconduct allegations, be sure you are following those, and that you’re documenting the steps taken. Doing so can help you defend a later claim that the matter wasn’t handled appropriately.
It’s important that allegations be addressed promptly, and your procedures should reflect the time-sensitive nature of workplace investigations.
2. Communications with the Complaining Employee
When an employee brings up potential misconduct by another employee, they want to know that their concerns have been heard. Let the complaining employee know that you are committed to conducting a thorough investigation into the matter and that, if warranted, corrective action will be taken.
However, it’s also important to make sure you discuss your investigation only with those who have a need to know. Keeping the details of the allegation and investigation confidential will help protect both the complaining employee and the integrity of your investigation.
3. Identify Lead Investigator
Selecting the individual responsible for leading the investigation is a critical step. You may initially want in-house counsel to take the lead on the matter, or you can retain an external investigator.
Using an internal investigator can have unwanted consequences if the matter is later challenged in court, as the attorney-client privilege and work product doctrines may not be recognized under certain circumstances.
Using an external investigator can help make employees feel more open and willing to be complete and truthful in their responses, as there is more of an appearance of independence. Remember, though, many states require HR consultants hired to conduct investigations be either an attorney licensed in the state or a licensed private detective.
Regardless of who is chosen, it is important that the investigator be objective and independent. He or she should never have supervisory authority over the person being investigated.
4. Communications with the Subject Employee
When it comes to discussing the investigation with the employee who is the subject of your inquiries, it’s important to be deliberate and clear.
You should let the employee know that you have received a complaint, and should provide them with the allegations in detail in order to allow them to respond fully. If possible to do so, keep the complaining employee’s identity confidential.
If conducting an internal investigation using in-house counsel, be sure to let the employee know that counsel represents the company, not the employee individually.
You should also let the employee know that it is against the law for them to retaliate against anyone involved in the investigation, including the complaining employee and anyone else who is participating.
5. Communications with Witnesses
During the course of the investigation, you will identify other individuals who may have information about the alleged misconduct. When these employees are interviewed, reassure them that retaliation is not allowed, and that their open, honest responses will help with the investigation.
Just as with your communications with the complaining employee and the subject of the investigation, assure witnesses that what they share will be confidential, and will be discussed only with those who have a legitimate need to know.
6. Take Action as Warranted
At the conclusion of the investigation, take all appropriate action, documenting the rationale and discussions thoroughly.
Workplace investigations can be stressful for everyone, but they don’t have to be. Every investigation is different, but by following the above steps, you can be more confident about your actions and decisions.