Many issues that arise in the workplace require employers to conduct a prompt and thorough investigation. Among other things, employers should investigate allegations or reports of theft, fraud, harassment, discrimination, retaliation, workplace violence or threats, substance abuse, security breaches, inappropriate use of the employer's computers or other property, or other types of misconduct or poor performance.

Although the underlying allegations may be different, certain basic elements should be a part of every investigation, as outlined in this article.

1. Policies

Written policies are necessary to maintain order in the workplace and to protect people and property. Ideally, employers can avoid or minimize employee misconduct and any related investigations by clearly communicating expectations to employees.

But when there are allegations of misconduct, policies also set the standard to which employee misconduct can be compared when an investigation is warranted. Having adequate written policies is an essential foundation for any downstream investigations.

2. Hotlines or complaint procedures

Some employers maintain "hotlines" for the reporting of suspected misconduct. These channels of communication can give early warning to employers of a problem and can be helpful. Employers should at least maintain robust and well-communicated problem-solving or grievance procedures.

Typically, employers should have one problem-solving procedure that follows the chain of command for operational issues or complaints and another more direct procedure for dealing with issues that may lead to employer liability such as harassment or discrimination.

Once issues or concerns are reported through these channels, the employer should spring into action with an investigation that is appropriate for the nature of the issue or concern.

3. Credible fact-finders

Upon receiving information that misconduct may have occurred, the employer must identify a person or team of people to lead the investigation and to make any decisions that may result from the investigation. These people will interview witnesses, gather evidence and ultimately make decisions. They must be unbiased, impartial, rational and objective.

These characteristics are critical for the credibility of the investigation and the conclusions that may be drawn or actions taken as a result of the investigation. Since these people may be called as witnesses in any resulting legal proceedings, they should be beyond reproach.

4. Witness interviews

The next step in the investigation will usually be to interview any people that may have firsthand information relevant to the issue. Employers must be careful to avoid relying on hearsay. If there is a complaint, usually the complaining party will be among the first to be interviewed. This initial interview helps to define the scope of the allegations and will help to shape the investigation.

In addition to the complaining party, managers, witnesses, human resource professionals and others with information relevant to the investigation will need to be interviewed. Employers should be careful not to bog down the investigation by taking copious notes or even affidavits at the beginning of an investigation.

The first part of the investigation should be focused on getting a handle on the issues and facts, identifying next steps and considering the big picture of what possible remedial steps will need to be taken after the investigation is completed.

5. Relevant documents and evidence

Other than interviewing eyewitnesses, most investigations also will require the gathering of evidence. Evidence can take many forms such as an incriminating letter, email or other communication, damaged property, a positive drug or alcohol test result, an electronic file, photos, audio or video files, or other documentary, physical or electronic matter that is relevant to the allegations and investigation.

Collection and preservation of such evidence in an unadulterated state is critical to the investigation. Where appropriate, chain of custody also will need to be documented and maintained.

Experts such as lab technicians, physicians, forensic accountants, computer specialists or private investigators also may need to be called on to assist with the collection and analysis of evidence. Of course, the need for such experts will depend on the nature of the investigation. When choosing an expert, the employer needs to make sure these professionals are well qualified and can credibly testify about any conclusions or recommendations that they may make.

6. Documents to memorialize the investigation

As the fact-finding phase of the investigation draws to a close, serious consideration should be given to how the investigation should be memorialized. Any documents created should explain the process, the facts discovered and the conclusions reached. Witness statements or affidavits should be accurate and limited to only relevant information.

When preparing these documents, employers always should consider that the documents may be subject to review by a government agency, plaintiff's counsel as part of the discovery process in litigation or even by a jury. Sometimes involvement of an attorney can be used to protect certain work product or privileged communications between the attorney and client.

7. Timeliness

Once the employer is aware of possible misconduct or performance issues, an investigation should be commenced without delay. The investigation should then proceed as swiftly as possible under the circumstances, but it should not be rushed. Enough time needs to be taken so that all of the facts can be gathered and analyzed completely.

Conclusion

Employers who make sure that these seven elements are part of every workplace investigation will have better employee relations and are more likely to minimize or avoid altogether legal claims.