The importance of conducting effective workplace investigations in response to internal complaints cannot be understated, especially in today’s highly regulated environment. There are various types of situations that call for a formal investigation, including allegations of harassment, discrimination, retaliation, an unsafe workplace or employee misconduct.

Not every workplace complaint calls for a formal internal investigation. Personality conflicts, poor communication and minor grievances, for example, may be resolved by listening to the concerns and meeting with the parties involved. However, when circumstances require a formal investigation, what steps should be taken to ensure its effectiveness?

Why is an Effective Investigation Important?

A prompt, fair and thorough investigation may help avoid administrative charges or lawsuits. It may also provide a defense to legal liability or regulatory fines. For example, if a sexual harassment allegation arises between two co-workers (non-supervisors) and the company has a policy, conducts a prompt and fair investigation, and takes appropriate corrective action (if the claim is substantiated), the company can establish a defense against liability.

An effective investigation is also critical for resolving and, ideally, preventing workplace conflicts. It demonstrates to employees that the company takes the matter seriously and gives teeth to the company’s policies. Poor or “sham” investigations, on the other hand, can lead to distrust and expose the company to liability.

In the recent Mohamed v. Society for Human Resource Management,¹ an organization has been accused of conducting a sham investigation of allegations of race discrimination and retaliation. A former employee (Mohamed) alleges she complained internally that her supervisor showed favoritism to white employees over non-white employees, then got a demand from her supervisor to finish projects by the end of the month.

While HR began an investigation, HR was simultaneously helping ghostwrite emails from the supervisor to Mohamed about the “non-negotiable” project deadlines. Mohamed complained this was retaliation. The timing is disputed, but either that same day or a few days thereafter, before completing the prior investigation or investigating the retaliation complaint, HR assisted the supervisor with Mohamed’s termination documents and then notified her that her complaints were unfounded.

In denying the organization’s motion for summary judgment on both liability and punitive damages, the district court found, in part, that a jury could reasonably conclude the investigation was a sham and, therefore, serves as evidence of pretext for discrimination.

When and How To Conduct An Investigation?

Generally speaking, any matter that may result in potential liability for the company should be investigated. This is true even if the victim does not complain. If a company does not investigate, they are inviting liability based on their failure to respond.

The following are some general tips for an effective workplace investigation:

• Use the right investigator(s). Typically, HR is the best choice because of their people skills and approachability. Some matters may call for a team approach. The investigator(s) should be perceived as unbiased and conduct the investigation in a fair and impartial manner.
• Determine the nature of the allegations. Determine which laws and policies are implicated and whether immediate or interim measures are necessary. For example, if the allegation is one of sexual assault or threatened violence, the employee who is the target of the investigation should likely be suspended pending the outcome of the investigation.
• Take prompt action. Most investigations should begin within a few days of the complaint and be completed as quickly as possible.
• Develop a plan for the investigation. Identify who will be interviewed and in what order and prepare an outline for the interviews.
• Preserve relevant information. Determine which documents and what information should be preserved. Gather relevant documents and review any relevant policies.
• Conduct interviews. Start by interviewing the complainant to understand the details of the allegations, followed by the alleged wrongdoer, any witnesses and then the complainant again.
• Clarify the investigation process. When meeting with those persons, the interviewer(s) should explain that it is a fact-gathering process, the company is conducting a prompt and thorough investigation and that it prohibits retaliation against anyone who complains or participates in the process. Having a no-retaliation policy and reiterating that is critical.
• Ensure confidentiality within limits. While complete confidentiality cannot be promised, assure interviewees that the investigation will be done as discretely as possible and the information will be disclosed only on a “need to know” basis.
• Avoid requiring confidentiality from interviewees. Interviewees should not be told or asked to keep the investigation confidential. The National Labor Relations Board has ruled that asking employees to keep an investigation or their participation confidential is a violation of the National Labor Relations Act – unless there is a specific need to protect witnesses, avoid spoliation of evidence, avoid fabrication of testimony or prevent a cover-up. Absent good reasons such as these, the interviewees should be asked to exercise discretion and avoid interfering in the investigative process.
• Take detailed, contemporaneous notes. Record the facts, not opinions. Ask the who, what, when, where and why questions, including follow-up questions. Be prepared to ask questions that test the information the interviewee is providing and can be used to assess the interviewee’s credibility.
• Have interviewees submit written statements. Ask the interviewees (complainant, alleged wrongdoer and witnesses) to write a statement detailing their perspectives.
• Document the investigation thoroughly. Document the investigation and prepare a summary of the findings (investigative report), including the allegations of the complainant, the relevant dates and persons involved, steps taken during the investigation, any relevant company policies or guidelines, any prior disciplinary history or performance evaluations (if those are factors in the decision-making process), witness statements, etc.
• Review the facts before making a decision. Consider whether all the pertinent facts have been gathered, whether all relevant witnesses (including the target of the investigation) have been interviewed and resolve any credibility issues.
• Conclude the investigation and make recommendations. This includes whether the investigation uncovered a weakness or “blind spot” in the company, corrective actions are needed, company-wide messaging or training is necessary, or the company has any reporting obligations to government agencies regarding the investigation. Involve experienced legal counsel in these determinations and/or action steps.
• Communicate the results. Share the investigation results and any remedial measures to the complainant and the alleged wrongdoer.
• Maintain separate investigation files. Keep the investigation materials in a separate investigation file. Do not put those in the employee’s personnel file.

Overall, effective workplace investigations are essential for addressing internal complaints, minimizing potential liability, and fostering a fair and respectful workplace. By following these general tips, employers can help make sure that investigations are conducted impartially, issues are resolved appropriately, and the company maintains compliance with legal requirements, all while reinforcing a commitment to a transparent and accountable workplace culture.