Employment Policies

Workplace Investigations: When, Who, and How

Workplace investigations occur for several reasons. Some workplace investigations result from an employee complaint of discrimination, harassment claims, or wrongful termination. Others are mandated by regulatory procedures. Others, still, are instituted to improve workplace performance.

Regardless of the purpose of the investigation, how the investigation proceeds and what it entails shapes an employer’s response and can help reduce exposure to legal claims.

While the exact procedures differ based on the company, employees, the alleged conduct involved, and the investigator, there are certain overriding principles common in most investigations. If the investigation is faulty, any response to the complaint may suffer the same defects.

WHEN TO CONDUCT AN INVESTIGATION?

Investigations should occur promptly, to ensure the employer adequately responds to a complaint and to provide the best opportunity to obtain relevant information and preserve potential evidence. Employers must take all complaints seriously, and evaluate the appropriate scope of the investigation so it can take prompt action.  At a minimum, the investigator should interview the complainant, the accused, and all witnesses

In some instances, an employer is obligated to conduct an investigation even in the absence of an employee complaint. For example, if the employer “knows or should have known” of conduct that requires investigation, the employer can be held liable for failing to conduct an investigation.

When contemplating an investigation, the employer must also consider whether to take some form of interim relief pending the results of the investigation. This could include separating the complainant and the alleged perpetrator, suspending the alleged perpetrator, temporarily modifying reporting structures or other appropriate action.  The purpose of interim relief is to ensure no further misconduct occurs before the company has an opportunity to investigate and resolve the situation.

WHO SHOULD CONDUCT THE INVESTIGATION

Several years ago, the California legislature passed a law restricting who could conduct a workplace investigation.  The purpose was to ensure the investigators were properly trained in how to conduct an effective investigation, and to protect employees lodging complaints in the workplace.  If the investigation is conducted by a person who is not employed by the company, the investigator must be a private investigator or a licensed attorney.  Internal investigations (i.e., conducted by an employee of the organization) do have to be conducted by private investigators or attorneys, but the person conducting the investigation should have the necessary skills and objectivity necessary to conduct an effective investigation.

When choosing who will conduct the investigation, start with someone who is objective, skilled, experienced, and with sufficient authority to be credible. Line managers are usually not sufficiently skilled to conduct a thorough investigation.  Additionally, if ultimate decision maker is influenced by others who had retaliatory motives, the investigation is not “independent”.  Many human resources personnel are qualified to conduct an investigation, but a human resources title does not guarantee the person has the training, skill and expertise necessary to do the job right.

A common question is whether an attorney should conduct the investigation.  Sometimes it is a good idea. Other times it is not. Attorneys are often trained in interviewing witnesses and testing credibility.  An attorney with litigation experience will have a better idea of the types of evidence that might be examined if a matter went to trial.  However, have the company’s corporate attorney conduct an investigation can also create a conflict of interests. The investigator will oftentimes be a witness if a matter proceeds to litigation, this could result in an unintentional waiver of the attorney-client privilege. As general rule, including lawyers in an internal investigation does not automatically insulate an investigation from disclosure.

HOW TO CONDUCT AN EFFECTIVE INVESTIGATION

Confidentiality and discretion are cornerstones of an effective investigation. Confidentiality is essential to protect the investigation and to help the participants feel comfortable disclosing information. Investigation records should be kept separate from other corporate or personnel records.

Investigation should be limited to a “need to know” basis. Only individuals who need to be involved in the investigation or in deciding the outcome should be kept apprised of the investigation’s progress.

Investigators cannot promise absolute confidentiality when interviewing witnesses or the complaining employee.  A thorough investigation will necessarily require revealing certain information.  Promising complete confidentiality can hurt the investigator’s ability to conduct an effective investigation.  Instead, the investigator should tell the complainant, the alleged perpetrator and any witnesses that the investigator will keep the information confidential to the extent possible, but will have to disclose certain information in order to conduct a thorough investigation.

If possible, the investigator should avoid using names of the accused and the complainant. Open-ended questions such as, “Have you seen anyone at work touch other employees in a way that made the employee feel uncomfortable?” is a good way to start.  As the interview proceeds, the investigator may get more specific.

Investigators must assume that everything that is said or written in an investigation will be discoverable.  Maintaining accurate notes is essential.

Investigators must also be aware that certain laws protect employees from over-intrusive investigations. The Employee Polygraph Protection Act – The Federal Employee Polygraph Protection Act (“EPPA”), 29 U.S.C.A. 2001 et seq., The Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 and the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., are just a few examples.

Investigators must also be cognizant of different tort claims that can arise from an improper investigation.  Claims such as defamation, false imprisonment, invasion of privacy or even intentional infliction of emotional distress must be considered.

FIVE PHASES OF AN EFFECTIVE INVESTIGATION

Investigations typically have 5 phases:

  1. The intake
  2. Creating the investigation pan
  3. Interviews and document review
  4. Evaluating the information
  5. Closing the loop

The intake is usually beginning of any investigation.  It’s where the investigator learns about the complaint or other impetus for the investigation, who the primary participants in the investigation may be, and the scope of the investigation.  It is the foundation of the investigation, and the building blocks for the following stages.

The investigator should then create an investigation plan detailing the likely witnesses to be interviewed and documents to be reviewed. The investigator may have suggestions for interim remedies necessary to preserve the investigation’s integrity or for employee protection.  The investigator must consider who to interview first, where the interviews will take place, and the possible scope of documents to be reviewed.

After an investigation plan is drafted, the investigator will begin interviewing witnesses and reviewing documents. There is no magic formula as to whom should be investigated first and in what order, but most investigators start with the person making the complaint.  The investigator may receive information that reveals other potential witnesses.  Depending on the circumstances, the investigator may want to speak with independent witnesses before interviewing the alleged perpetrator.  In some instances, such as when documents or video evidence reveals the exact nature of the alleged misconduct, additional interviews may be limited. In other circumstances, the number of witnesses may be very high.

After the investigator interviews the witnesses and reviews the relevant documents, the investigator has to evaluate the information.  Investigators should evaluate the credibility of each witness, which may include underlying motivations.  Depending on the scope of the investigation, the investigator may be called asked to render an opinion regarding the conclusions to be drawn from the information obtained. In other circumstances, the investigator presents only the facts and the employer reaches its own conclusions.

Closing the loop is usually the final step an effective investigation.  This is where the investigator, or the employer, reveals the results of the investigation and takes appropriate remedial steps.  The complainant is not necessarily entitled to a full report of each piece of information obtained, but someone should reach out to the complainant and the alleged perpetrator to discuss the end results of the investigation.  This provides finality to investigation process, and enables the parties to determine how to proceed.

Each investigation is unique.  Although there are general underlying principles that apply in most investigations, sometimes an investigation must deviate from the norm.  What is required in any particular instance will be determined by the specific facts and circumstances leading to the investigation.

 

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

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