A Guide to Workplace Investigations: Common Mistakes and Best Practices

Employee complaints affect organizations of all sizes and across all industries. Whether an employee claims that they are being harassed on the job or that another employee is “cooking the books,” the company will need to conduct a workplace investigation.

An efficient investigation determines whether an employee has engaged in misconduct without getting bogged down in extraneous information or spiraling into a broader analysis of unrelated conduct. According to a poll conducted by Ogletree Deakins in 2021, internal complaints and workplace investigations are on the rise.

This blog post will make sure you’re fully prepared to handle them. First, we’ll cover the basics of workplace investigations. Next, we’ll look at the don’ts, setting out some of the common mistakes employers make when conducting investigations. We’ll wrap up by providing the dos—five practical tips for conducting an efficient workplace investigation—and explaining how technology can help streamline the process.

Let’s get started.

Contents:

The basics of investigations in the workplace

What are the common reasons for initiating workplace investigations?
Who is responsible for conducting investigations in the workplace?
What are some of the key steps in conducting a workplace investigation?

Three common mistakes in workplace investigations
Five practical tips to efficiently conduct workplace investigations
How technology can streamline workplace investigations
Don’t make workplace investigations harder than they need to be

The basics of workplace investigations

A workplace investigation is a process of gathering and evaluating information related to an issue involving one or more employees. The mission of the investigation is to determine whether any of the organization’s employees engaged in workplace misconduct or illegal behavior and, if so, what the company could do about it.

What are the common reasons for initiating workplace investigations?

Workplace investigations are often triggered by an employee complaint or an anonymous allegation regarding misconduct. For example, a workplace investigation might arise when an employee complains to a human resources (HR) professional or another representative of the company that he or she has experienced discrimination, harassment, or another potential violation of employment law.

A workplace investigation also might occur in response to an allegation that an employee has stolen company property, participated in insider trading, or been involved in some other form of misconduct. But investigations don’t have to relate to allegations that someone has violated an applicable law or regulation. An investigation could also be initiated in response to a claim that an employee is not complying with company policy.

Who is responsible for conducting workplace investigations?

Companies have a few options regarding who to task with conducting a workplace investigation, including:

• HR professionals,
• in-house counsel,
• outside legal counsel,
• third-party investigators, or
• multidisciplinary teams that involve a combination of the above.

Any of these options might be more or less appropriate depending on the specific circumstances surrounding the investigation.

What are some of the key steps in conducting a workplace investigation?

Each investigation can be broken down into preliminary, fact-finding, and resolution stages.

During the preliminary stage, the company will need to review the complaint or other allegation and determine whether an investigation is needed. This may depend on, among other factors, the seriousness of the allegations or whether any of the alleged facts are in dispute. Once a company decides to move forward with an investigation, it will need to select an investigator and create a plan for the investigation process. Throughout this stage, the company also must determine whether it should take any immediate action to protect an employee or the company.

After the preliminary stage, the investigation should shift into a fact-finding process. This will involve interviewing employees who are at the center of the complaint and others who may have witnessed relevant conduct. The company also will need to gather any helpful evidence, such as relevant emails or chat messages.

Once the company has assembled all of the necessary information, it will need to evaluate that information and make a decision regarding the complaint. The company then will need to notify the involved employees about its final decision.

If the company concludes that the facts alleged in the complaint are supported by the evidence, it will need to take appropriate action, such as terminating or otherwise disciplining the employee at fault. In any event, the company also should look at whether updating a company policy or taking other broad corrective actions may help reduce the risk of a similar incident occurring in the future.

Three common mistakes in workplace investigations

When a workplace investigation is done well, it can benefit a company in several ways. An effective investigation can protect the company by reducing or eliminating any potential liability that might arise from the underlying issue. It also can result in an overall healthier work environment by making employees feel safe, valued, and heard. In addition, allotting time and resources to review issues within the organization often leads to new or improved company policies that could prevent certain problems from reoccurring.

However, there are a few common pitfalls when it comes to workplace investigations. And these mistakes can be costly. An investigation gone wrong could lead to more problems—and more potential liability for the company—than the situation that initially instigated it. Here are three common mistakes that arise during workplace investigations.

  1. Starting the investigation too late

As soon as a company receives a complaint or allegation, it should begin evaluating that claim. Whether the complaint was made over the phone, in person, or in writing, it should trigger swift action.

A company takes on several unnecessary risks by delaying an investigation. First, the issue underlying the complaint could escalate during the time it takes for the company to investigate. This hurts the employees involved, damages broader employee morale, and increases the company’s potential liability.

Additionally, under some employment laws, employers are required to begin investigating certain types of complaints within a specific period of time. Some companies also have internal policies that require complaints to be handled within a certain timeframe.

  1. Choosing the wrong investigator

A company should assess who will serve as the investigator on a case-by-case basis. An individual who was a great fit to investigate one complaint may not be the best choice for a different complaint.

The investigator for each matter should be objective and not have close ties to any of the employees involved or to the issue at stake in the complaint. The investigator should also possess strong interpersonal skills and emotional intelligence, especially when handling complaints involving highly sensitive matters. A workplace investigation should never involve harsh tactics that cause employees to feel intimidated or afraid to share information. These tactics impair the workplace environment and hinder the fact-finding process.

The investigator must have the proper experience and specialized training to handle an investigation. This is not a role that should be learned on the fly. An ill-equipped investigator can undermine the investigation and increase the company’s risk of liability.

  1. Guaranteeing total confidentiality

During the fact-finding stage of the investigation, the investigator will meet with the employees involved in the complaint and with any other employees who may serve as witnesses. After explaining why the interview is needed, the investigator must explain that, to the extent possible, any information that the employee provides will be kept confidential.

But that confidence is not absolute. If in-house or external counsel is conducting the investigation, they must give what’s known as an Upjohn warning. That warning must clarify that:

  • the attorney represents the company, not the witness, such that attorney-client privilege applies only to the company, and
  • the company may choose to waive the privilege and disclose the employee’s statements to a third party.

In all investigations, the investigator should make it clear that the information employees provide could be shared with regulatory authorities or other third parties. Don’t promise complete confidentiality when you may not be able to keep that promise.

Five practical tips to efficiently conduct workplace investigations

So, you know what you shouldn’t do—but what should you do during a workplace investigation? We’ve assembled five tips to help you conduct investigations quickly and efficiently.

  1. Be prepared

Investigations are a matter of when, not if. Anticipate that at some point you’ll need to conduct a workplace investigation and establish a clear process for doing so. By knowing what to do and who to call when an employee makes a complaint, you can avoid wasting time trying to figure out logistical matters, focus on the specific issues at hand, and start taking action right away.

Periodically review your organization’s policies and procedures related to complaints and make sure you know how claims will be investigated and ultimately resolved. Adopt or revise company policies whenever needed to protect the company and its workplace environment.

  1. Keep an open mind

Throughout the investigation, the investigator must remain neutral and open-minded. It’s all too easy to make assumptions and jump to conclusions, but this introduces bias into the investigation and potentially influences the results. Keep an open mind until all the facts are in.

  1. Use multidisciplinary teams and technology

Workplace investigations can be straightforward or considerably complex. The former may be simple to handle, but the latter requires ample support. These investigations will benefit from a team approach. For example, an HR leader might be the primary person handling the investigation, but in-house counsel and management likely should be looped in as well, especially before making any final decisions. In addition, information technology (IT) teams might be needed to assist in gathering relevant data.

Another way to support an investigation is by using eDiscovery tools and other technology. These tools can streamline the whole process—which we’ll get to in just a moment.

  1. Document the investigation process

As you conduct a workplace investigation, keep a record of the steps you take throughout the investigation process, from the intake of the complaint through the fact-finding process to the ultimate resolution. Your investigation should be accompanied by a report that summarizes these steps and recaps the evidence you gathered.

It is critical to remember that any complaint or allegation has the potential to result in litigation. Down the road, a court might look closely at whether a company handled the complaint timely and appropriately. Protect your company by documenting the entire process with as much detail as possible. Having these details stored in one place can prevent substantial headaches in the future.

  1. Communicate clearly at every stage

Throughout the process, the individuals involved in conducting and overseeing the investigation must communicate clearly and effectively with one another and with the individuals involved.

It is important to make the person who made the complaint feel that the company is taking the complaint seriously. They should also have a clear understanding of what will happen next and at least the general timeline in which events will occur. The investigator should also loop in management and legal counsel as appropriate.

Once a final decision has been made, let the involved parties know about it. While not every detail of the decision can be shared, the employees implicated by the complaint should at least be notified that a decision has been made and the complainant should be assured that the company is taking appropriate measures to address the issue.

How technology can streamline workplace investigations

Workplace investigations require thoroughness and timeliness. But these two requirements can feel at odds with each other. Gathering—let alone evaluating—enormous amounts of data within a short timeline can be extremely challenging. This is where technology can make a huge difference.

Many eDiscovery tools, such as technology-assisted review, entity search, and relationship analysis, can be invaluable in the context of workplace investigations. When a company uses these tools, it can complete investigations more efficiently and effectively.

Don’t make workplace investigations harder than they need to be

Workplace investigations are often complicated—but the systems used to conduct those investigations don’t have to be. By automating processes, eliminating the need to manually sift through information, and centrally storing data, companies can save considerable time, energy, and resources.

The ZyLAB ONE platform offers a variety of valuable tools that can support and improve workplace investigations. Our end-to-end solution includes automation, context, and proactive intelligence tools that can be customized to meet the needs of any organization.

To find out how you can streamline and simplify workplace investigations with ZyLAB ONE, contact us today.