Knowing when and how to conduct an investigation can be an employer’s most important tool in avoiding and minimizing work-related claims. Not only are employers legally required to investigate claims of discrimination and harassment, investigations are often mandatory under company policies and, importantly, critical to employee relations, i.e. creating and maintaining the perception of a fair and equitable workplace.
In the past few months, we have conducted several substantial investigations for clients involving: harassment/bullying by a top-level employee, sexual harassment, employee theft, and ethical misconduct. While the subject matter is always unique, the same guiding principles apply to all investigations:
1. Know When to Investigate – employers must investigate all claims or incidents of harassment, discrimination and violations of law or company policy, even in the absence of a formal complaint.
2. Determine the Scope and Extent of the Investigation – establish who will be interviewed and what documents are relevant (capture electronic data).
3. Choose the Right Investigator – impartiality and lack of bias are critical. If there is a possibility that the claim will go to court, choose an experienced investigator who will make a good witness.
4. Investigate Promptly – start the investigation as soon as possible and notify employees of any necessary delays.
5. Take Immediate Interim Action If Necessary- place employee on leave, temporarily change lines of reporting.
6. Investigate Thoroughly – interview all witnesses, review relevant documents, follow up if warranted.
7. Document the Investigation – keep objective, fact-based notes of witness inteviews. The written report should contain an accurate, unbiased recitation of facts and conclusions. Recommendations can be included, if they will be followed.
8. Follow up and Follow Through – take appropriate disciplinary action, notify regulatory or law enforcement agencies if required, prevent retaliation, and bring closure.
Conducting a prompt and thorough investigation can prevent claims from going to court, establish a solid defense and bolster an employer’s credibility.