9 practical tips for workplace investigations
Thursday, December 19, 2019
Many circumstances arise where human resources professionals are required to conduct investigations. These circumstances may include instances of alleged workplace violence or bullying, harassment or discrimination, suspected drug or alcohol abuse, unsafe conditions, or safety violations and the like.
This article offers some basic “common denominator” tips for investigating most of these situations. Keep in mind, however, that every situation is different, and a tailored approach is required for the best outcome for the company and to minimize legal liability.
1. Act immediately.
In situations where harm is threatened or has happened to persons orproperty, immediate action is required, both legally and as a practical matter.As soon as company officials learn of a concern, they need to think like “first responders.”
That means they need to decide what actions should be taken immediately to protect people and property and which actions can be delayed or sequenced out over time once the situation is under control.
For example, some of the initial decisions that need to be made are: (1) do we need to take any immediate remedial actions, such as calling law enforcement, correcting an unsafe condition or sending any people to the hospital; (2) should we suspend the person who is causing the harm or the alleged threat, pending an investigation to follow; (3) what evidence do we need to preserve; (4) who do we need to inform of the situation, such as the Board or law enforcement; and (5) how do we handle the media and outside communications?
2. Identify who will conduct the investigation.
Once the initial threat is curtailed, decisions need to be made about the next steps. Probably the first step is to decide who will play what role in the investigation.
Among others, specific roles may be assigned to the investigator, expert, scribe or collector of evidence, public relations communicator (internally and externally), and legal advisor. Selection of the right people to fill these, and other roles, is a critical decision that could affect the outcome of the entire investigation.
3. Develop a reasonable plan but be flexible.
Once the investigation team is formed, they need to develop a working plan for the investigation. This plan may evolve and adapt as the investigation progresses. There is no substitute for a detailed working plan to make sure that the investigation stays on track.
The plan may include, among other things: (1) an analysis of what documentary, physical, electronic or other evidence may be material and relevant to the investigation; (2) how that evidence will be collected and preserved and by whom; (3) who needs to be interviewed as part of the investigation, for what information, by whom and in what sequence; (4) what issues require further research or use of resources; (5) what kind of documents will be created as the investigation proceeds and ultimately what kind of summary report will be necessary; and (6) how and when the plan will be reviewed and adapted to fit the results of the investigation as it unfolds.
4. Gather and preserve evidence.
Evidence relevant to the investigation may vary greatly, depending on the nature of the investigation. Most scenarios will require gathering policy or safety manuals, training or disciplinary records, personnel files, correspondence, electronic records of some type or other types of documentary evidence.
Here are a few examples, by way of illustration: (1) in a drug abuse scenario, evidence may include the drugs or alcohol product found in the workplace, paraphernalia or drug test results. (2) In a workplace violence scenario, evidence may include weapons, social media posts or other items. (3) In a harassment scenario, evidence may involve phone, email or text messages, audio or video recordings, gifts or novelty items.
Regardless of the situation, it is important to determine what evidence does or may exist, how to collect it, preserve it and keep it safe until it is needed in any downstream litigation or internal proceeding.
5. Interview witnesses.
A key step in any investigation will be interviewing witnesses with information relevant to the subject matter of the investigation, preferably those with actual first-hand information. Preparation for interviews will include deciding who will conduct them; who else will be present; in what order will they be conducted; where will they be conducted; how will they be conducted (in person, by video or telephone); what questions will be asked and in what order. Prepare outlines and identify documents for each witness interview before the interview begins.
In the interviews, make sure to follow practical and legal guidelines: inform the witnesses about the identity of the investigator (HR professional, professional outside investigator, lawyer, law enforcement investigator); tell the witness why the interview is being conducted and how the testimony may be used; if appropriate provide a Johnnie’s Poultry- or Upjohn-type warning at the outset of the interview (that the witness is participating voluntarily, may terminate the interview at any time, will not be subject to retaliation for not cooperating or will not be rewarded for participation, may end the interview at any time; that the attorney represents the employer, not the employee; that the company not the employee, is the holder of the attorney-client privilege; and that the company may, as it sees fit, waive the privilege and disclose the employee’s statements, including incriminating ones, to the government).
These instructions may vary depending on the nature of the investigation. At the end, tell the witness there will be no retaliation and, to the extent allowed by law, the substance of the interview should be kept confidential.
6. Draw conclusions and decide what remedial actions are necessary.
As soon as possible, drawthe investigation to a logical conclusionand decide what corrective or remedial actions are necessaryunder the circumstances.Even if the investigation results proved inconclusive, remedial actions may still include revising, posting or republishing policies; supervisory or employee training; monitoring and other preventive steps designed to avoid future harm to persons or property.
7. Decide how to document the investigation.
Create and deliver the verbal or written report to appropriate stakeholders and decision-makers within the organization.
8. Comply with any external reporting obligations.
Determine if there are any reporting obligations. For example, what information needs to be provided to local or corporate management or to the Board of Directors or even shareholders? Determine whether self-reporting is required to any law enforcement agency or regulatory agency.
9. Follow up as necessary.
Lastly,in some situations, particularly those involving harassment or discrimination or retaliation scenarios, it is necessary to advise the complainant about the results of the investigation and how to report future concerns.
Investigations in the workplace are inevitable. Human resources professionals must know the basics of conducting effective investigations to help their companies deal with workplace crises in ways that avoid and minimize liability, as outlined in this brief article.
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