Workplace Investigations Done Right: Best Practices to Reduce Liability

Equal Employment Opportunity Commission (EEOC) guidance states that employers must conduct prompt workplace investigations when they are put on notice that harassment, discrimination, or workplace misconduct is taking place in their business. Workplace investigations are important because they help employers make informed decisions, reduce legal liability, and help employees feel safe in their place of employment. Furthermore, the law may require that an investigation take place depending on the alleged misconduct that is reported.

Preparation Is Key

To facilitate a timely and effective response, employers should develop workplace policies and procedures that clearly outline the investigation process. First, identify the individuals responsible for conducting internal investigations. Second, ensure that investigators are adequately trained in conducting investigations, maintaining employee privacy, and proper documentation. Lastly, ensure that all personnel understand how to report complaints and what to expect after a complaint is made.

Internal Documents Can Become Evidence

Documentation is a critical component of every workplace investigation. Employers should maintain records of all investigative activities, including the complainant’s allegations, witness statements, interviews, steps taken, and factual findings. Careful documentation helps support a finding that the employer conducted a prompt and impartial investigation designed to reach a reasonably fair determination of the facts. Because investigation files become relevant in administrative proceedings or litigation, employers should retain these records in accordance with their internal document retention policies. Properly maintained investigation records not only support credibility determinations but also provide valuable evidence that the employer responded appropriately to workplace concerns.

Be Thorough

At the conclusion of an investigation, the investigator should feel like they have a clear and complete picture of what happened. The investigator should have access to all necessary resources, for example, personnel records, company policies, electronic communications, and witness statements.

Protect Against Retaliation

The law prohibits employers from taking adverse action against employees making good-faith complaints or for participating in an investigation. Retaliation prevention should remain a priority throughout and after the investigative process. By monitoring potential retaliatory conduct and responding promptly to concerns, employers can reinforce confidence in the complaint process and reduce the risk of additional liability.

What Employers Should Not Do

Delay the Investigation

By law, employers are required to investigate all complaints, even ones submitted anonymously. Depending on the type of complaint filed, immediate investigation may be required. If an employer delays an investigation, this can lead to lawsuits imputing direct liability based on negligence against the business as well as call into question the integrity of the internal investigation.

Leave Room for the Appearance of Bias

Impartiality is essential. Employers should ensure that investigations are conducted by individuals who can make objective determinations. Employers should consider hiring external investigators when an internal investigator’s impartiality can reasonably be questioned. Taking these steps helps preserve the integrity of the investigation and its findings.

Be Vague

Final investigative reports should clearly state the investigator’s reasoning and the facts that led to their conclusion. Failing to clearly state factual findings will call into question the adequacy of the investigation.

When Is an External Investigator Necessary?

There are various scenarios when external investigators are necessary. For example, when the complaint is made against a high-ranking employee, it is best practice to hire a third-party investigator to preserve the impartiality of the investigation. Also, external investigators can help navigate complex claims of discrimination, harassment, or retaliation. Generally, third-party investigators are helpful in avoiding the appearance of bias and helping employees feel confident that their complaints are taken seriously.

Bottom Line

Workplace investigations are extremely important for keeping employees safe and protecting companies from liability. When conducting internal investigations, employers should remember to provide and preserve the appropriate documentation, be thorough, be prompt, avoid bias, and protect their employees from retaliation.