Conducting comprehensive and accurate workplace investigations is an integral part of an employer’s duties. Whether the investigation involves allegations of minor violations of policy or more serious allegations of discrimination or harassment, each instance should be carefully analyzed to ensure all the relevant facts are uncovered so the employer can respond appropriately. If left unaddressed, such allegations may later turn into complaints of retaliation, failure to prevent harassment, or discrimination/ bias in the workplace. Compiled below are three common pitfalls to avoid, followed by three best practices to implement when conducting workplace investigations to help agencies ensure accuracy and prevent future liability.
DON’T:
Wait to get started.
Perhaps the most important piece of advice when dealing with complaints of misconduct is to begin acting on them immediately. For example, employers have a legal obligation to promptly investigate all complaints of harassment, discrimination, or retaliation. Additionally, for public safety departments, investigations run up against a one-year statute of limitations to impose any discipline for misconduct. Accordingly, it is imperative that agencies begin as soon as reasonably practicable, ideally within a few days, in order to ensure plenty of time to gather the required information and evidence needed to evaluate next steps. If you are using an outside investigator, ensure they are available on short notice. Some are in high demand and won’t be able to get to your matter quickly. There are plenty of good investigators who can be available soon, so do your research!
Be unorganized.
Disorganization is a very common pitfall for internal investigations and it can lead to troubling problems in the future when trying to impose discipline. The final investigation should be based on an unassailable record of what was reviewed, who was interviewed, when each step was completed, and what was done with the findings. These key elements will be scrutinized over and over again, so it is important to be systematic in your execution!
Be afraid to consider interim actions.
In some circumstances, it may be necessary to take interim steps to resolve the harm giving rise to the complaint while the investigation is ongoing. For example, if allegations involve discrimination or harassment, employers should consider whether a temporary assignment transfer or administrative leave is appropriate for the accused wrongdoer. However, be careful when considering transferring or placing the complainant on administrative leave, as it could be viewed as retaliation.
DO:
Document everything.
When in doubt, write it out! As noted above, it is likely for any investigation to be heavily scrutinized, meaning that the investigator will have to defend their methodology and contents of their investigation report again and again. The best defense is always a good offense, so investigators should be proactive in creating an extensive paper trail of their investigation. Be sure to collect and review all complaints, background documents, and additional evidence that is provided during the course of the investigation. It is also a good practice to record interviews, or if the witness does not wish to be recorded, make note of that in the record and take detailed notes of the interview too. If possible, having a second person available to take notes when no recording is being made can help ensure no details of their statement are overlooked. The final investigation report should include all evidence the investigator considered in making their findings, as well as provide detailed analysis of how that evidence supports the findings. An expansive investigation record is irreplaceable.
Consider an outside investigator.
In some circumstances, to ensure an unbiased investigation, it may be necessary to consider an outside investigator. This may be the case when the subject is a high-ranking employee or involves a high-profile incident where using an outside investigator will enhance the credibility of the investigation. An outside investigator can also be useful when the issues involved are complex, or when claims of discrimination/harassment/retaliation are involved, to help reduce future allegations that the investigation was conducted with bias. When choosing an outside investigator, be sure to ask for their familiarity and experience investigating the particular issues at hand, and perhaps even ask for a redacted final report from a past investigation to analyze their work product. It’s okay to be picky to ensure that you are doing your due diligence.
Take prompt corrective action.
Lastly, after the investigation is complete, be sure to take prompt corrective action, if needed. Delaying corrective action leaves the door open for claims of retaliation from the complainant and allegations of bias if an accused stays on administrative leave for an inordinately long period of time. If misconduct is involved, it is in everyone’s best interest for it to be resolved quickly and efficiently.
Internal investigations can seem daunting; however, following these tips will help ensure the process is as thorough and efficient as possible. And in all circumstances, if questions arise, it is highly recommended to consult with trusted legal counsel.