Best Practices for Investigation of Work Place Misconduct

August 10, 2011

By: David M. Ferrara

Every employer, regardless of size, will eventually face the need to investigate a workplace misconduct issue.  Whether necessary to resolve a dispute between coworkers or to address unethical or unlawful behavior (e.g. alleged harassment of recently married same-sex couples), a properly conducted workplace investigation is a critical part of doing business.  Of course, most employers expect their HR professionals to properly handle even the most delicate investigations, and more importantly, protect the organization from potential liability resulting from either the misconduct or the investigation itself. As illustrated in a decision from the United States Court of Appeals for the Sixth Circuit upholding a jury verdict of over $1 million, juries are not reluctant to award plaintiffs substantial punitive and compensatory damage awards when employers fail to conduct proper investigations in response to complaints of workplace discrimination. For these reasons, it is imperative that every organization have a process in place to properly investigate workplace issues.

The most effective workplace investigation policies should require prompt investigation of all suspected misconduct. Employers should investigate a claim of wrongdoing even if a formal complaint is not filed. For example, the obligation to investigate may arise from an informal complaint, anonymous tip, information obtained from non-employees, information obtained during exit interviews, or any other means that brings the matter to the employer’s attention. “It wasn’t in writing,” or “she asked me to keep it confidential,” are not acceptable excuses for failing to conduct an investigation.

There are exceptions, of course, for example when the accused employee admits to the allegations right away or when the complaint is very minor, but even in these situations it is advisable to conduct a limited investigation to determine the full scope of the misconduct. At a minimum, conducting an investigation will stop the misconduct if it is occurring, send a message to employees that all workplace misconduct will be taken seriously, create a documented record, and put the organization in a much stronger position to defend against subsequent claims.

Next, select the right person to conduct the investigation. Selecting an individual who is experienced and is neither biased nor perceived as biased is essential to maintaining the integrity of the investigation. The investigator should be empowered to decide who to interview, decide what issues to pursue, engage outside resources if necessary, maintain confidentiality where possible, and be expected to make recommendations to management regarding an appropriate response to the complaint.

Developing a strategic investigation plan helps ensure the investigation is comprehensive and thorough, and substantially increases the probability of identifying material facts necessary to determine appropriate action by the employer. Although workplace investigations often take unanticipated turns, a well-documented plan will provide the road map necessary to accomplish the goals of the investigation. Similarly, properly documenting each interview, including obtaining a confirming signature from the complaining employee, is essential to completing a quality investigation. Documents never have bad memories.

Although it is obviously important for an investigation to be done promptly, it is also critical for the investigator to pursue the investigation wherever the facts may lead. Interviewing additional witnesses, reviewing relevant documents, and re-interviewing witnesses to obtain their response to the statements of others should never be avoided for the sake of expediency.

Quality investigations do not reduce the risk of an employer liability unless they have been properly completed. This requires communicating preliminary findings to the target employee to give the employee the opportunity to provide rebuttal information that may undermine the initial determination or require further investigation. Other essential steps include communicating with the complaining employee once conclusions are reached, administering appropriate discipline (if any), preparing a final investigation report, destroying all preliminary drafts (unless a “litigation hold” is required), maintaining the report in a location separate from the complaining employee’s personnel files, ensuring no retaliation is taken against the complaining employee, and disseminating information received during the investigation on a “need to know basis” only. It is also advisable, depending on the seriousness of the potential misconduct and potential employer liabilities, to have a “fresh set of eyes” independently review the investigator’s preliminary findings.