Frequently Asked Questions
Not every workplace problem requires an investigation. An employer should ask several questions to decide whether to conduct an investigation and the scope of the potential investigation.
(1) Are the facts in dispute? If there is no dispute over what happened, you may need to conduct a limited investigation to determine the number of people affected and the extent of the harm. Otherwise, move to the next step of deciding how to respond the situation.
(2) How serious is the problem? A matter that is obviously trivial, such as determining who left dirty dishes in the lunch room, may not warrant a full investigation. Investigations should be scaled to the size, complexity and seriousness of the problem. But beware: A seemingly simple, minor matter may be symptomatic of a larger issue, and an initial inquiry may reveal unrelated more serious issues that warrant a closer or deeper look.
(3) Would the allegations, if true, be a violation of law or workplace rules? Employees may not always file a formal complaint or fully describe a problem, so some initial digging may be necessary to answer this question.
(4) How have similar complaints been handled? Employers should be fair and consistent in investigating similar conduct and follow their internal processes and procedures to avoid claims of discrimination and retaliation.
No employer wants to hear about a workplace problem. But investigating and responding in the correct way may benefit employers in the following ways:
- Appropriate workplace decisions become easier to make
- Workplace problems are dealt with before they worsen
- Employee morale is improved, and people are encouraged to report misconduct
- Negative publicity is minimized, preserving the employer’s good reputation
- Company policies are enforced
The way an employer learns about a problem has no bearing on whether an investigation is necessary. An employer should encourage formal reporting through a considerate and transparent procedure. However, the duty to investigate may be triggered even if an employee is unwilling to make a formal complaint. Even an anonymous complaint or a complaint by a former employee, customer, client or vendor may need to be investigated. Generally speaking, once a manager or supervisor is aware of a workplace problem, an employer is legally obligated to address it.
- Take interim measures to protect employees and preserve evidence
Sometimes an employer needs to take precautions to protect the physical safety of employees, avoid further violations or protect against retaliation. Interim measures may include separating employees from each other, temporarily changing a reporting structure, or even placing an employee on paid leave pending the conclusion of the investigation. An employer should also preserve evidence in a timely manner, which may mean blocking an employee’s access to databases or email, copying hard drives or issuing a litigation hold.
- Create an Investigation Plan
Decide who will conduct the investigation. The investigator should be impartial, objective and possess the necessary skills and time to conduct the investigation. The investigator can help the employer determine the scope of the investigation. This means making an initial determination of the issues to be investigated. Planning also includes deciding what documents are needed and how to get them, as well as determining which witnesses to interview. The investigation plan may need to be adjusted as the result of newly discovered witnesses, documents or issues.
- Gather evidence by interviewing witnesses and reviewing documents and physical evidence
Witnesses are the heart of an investigation. Interviews should take place in an environment that maximizes the chances of obtaining reliable information. Witness interviews should be documented (either through note taking, statements or recordings) in a reliable and consistent manner. Documents also play a crucial role in most investigations. Documents may include emails, texts, personnel files, job descriptions, payroll records, performance reviews, computer records, work samples, policies, procedures and employee handbooks. Sometimes, physical evidence — like weapons, drug paraphernalia, or photographs — is relevant.
- Analyze the evidence to make findings
The most challenging part of an investigation is sifting through the evidence to figure out what happened. If there are conflicting stories, credibility assessments must be made. Ultimately, the employer must decide whether misconduct occurred and whether policies or laws were violated. The findings should be consistent with the scope of the investigation. The investigation should be fully documented and include a description of the steps taken as well as the decision-making process to create a reliable record of the evidence supporting the findings.
- Take appropriate action and follow up
Ultimately, the employer (usually not the investigator) decides upon the action that should be taken based on the findings. If no misconduct occurred or results were inconclusive, employees may still be counseled or warned. Policies may be reviewed and clarified, or workplace training may be instituted. If misconduct occurred, the employer must take appropriate disciplinary decisions that are consistent with policies and practices and effective in ending the wrongdoing. The employer should communicate the results of the investigation to both the complaining and accused parties and follow up to ensure there is no retaliation. The obvious goal is to see that the problem that led to the investigation is appropriately addressed and resolved.
Some investigations can be effectively conducted in house, but there are advantages to hiring professional outside counsel in the following circumstances:
- There is no qualified in-house staff available to promptly handle the investigation.
- The complaint is against a high-ranking employee or someone in a position of authority over the internal investigator.
- The complaint involves numerous employees or a widespread pattern or practice, or is extremely serious in nature.
- The internal investigator has or is perceived to be lacking independence or objectivity.
- The complaint is the subject of an agency complaint or likely to result in litigation.
- The matter has or is likely to be widely publicized in the workplace or in the media.
An outside investigator is not intended to replace or duplicate the valuable services offered by experienced employment counsel. In fact, many of our clients are referred by employment attorneys to conduct one-time investigations for their clients. Our primary function is to determine and report facts, leaving it to an employer’s counsel to reach legal conclusions and guide clients in taking appropriate action.
The cost of an outside investigation depends on many factors, some of which are controlled by the client. We give clients an estimated budget that takes into account the scope of the investigation, the number of witnesses to be interviewed, the extent and nature of the documents and physical evidence to be reviewed and analyzed, the type of analysis and reporting requested by the client, and other factors unique to the situation. We can work with clients to adjust the budget throughout the investigation to find the best fit. We are committed to making investigations as affordable as possible and to minimize workplace disruption.
Our practice is limited exclusively to workplace investigations, so we are prepared to act quickly whenever clients retain us. We identify the core issues efficiently and do what’s necessary for a thorough investigation. Some investigations may be concluded within a week, while others may take months, depending on the scope of the investigation and the client’s requirements.
The client decides the scope of the investigation, as well as the type of written report we prepare (but not the findings or conclusions). Some clients request that the report be limited to a statement of factual findings. Others want the report to address whether the conduct in question violated employer policies. Legal conclusions and recommended actions are included in the report only when requested and within the scope of our engagement. A typical written report includes a statement defining the scope of investigation, a list of the issues addressed, a description of the investigative process, a summary of the evidence considered, a list of the relevant employer policies and law (if applicable), an explanation of the evidentiary standard used, and a statement of the investigator’s findings and conclusions.