Prudent employers use workplace investigations as part of their risk management protocols. Any number of events can trigger the need for a workplace investigation. Investigations are used to determine the veracity of employee complaints, whether employee misconduct has occurred, and as a means to determine the employer’s potential exposure to discrimination, harassment, and wrongful termination claims.
The manner in which investigations are conducted can significantly affect both the employers’ ability to defend against legal claims, as well as its employees’ trust and confidence in the investigation process. Employers’ demonstrated commitment to launching investigations when appropriate, and taking further action based on the results therefrom, are critical and can profoundly affect potential liability should litigation ensue.
Here are some best practices that we recommend employers follow when conducting any workplace investigation.
The investigation must be a genuine attempt to determine the validity of the complainant’s allegations, and to remedy any wrongdoing that is uncovered. A thorough and impartial workplace investigation, initiated promptly upon learning of the complaint, should be a critical component of the employer’s risk management practices. Promptly responding to a complaint, through an investigation, sends a message to the complainant and the accused that the employer’s complaint policies and procedures are not mere lip service.
Determining the scope and depth of the investigation will depend on the allegations, the employer’s policies, and the applicable State and federal laws implicated. The investigator’s approach will depend largely on the facts and circumstances of each case. The investigator will need the employer’s assistance to identify the issues to be investigated, witnesses, documents, and other potential evidence.
However, the scope of the investigation should be flexible. Not infrequently, the full extent of a complainant’s allegations, or possible misconduct, is not known at the outset. The investigation should evolve as the investigator learns of facts issues that exceed the initial scope. If this occurs, the investigator should inquire if the employer wants to expand the scope.
One of the central goals of an employment investigation is to develop a clear and complete record that the investigation was properly performed. To ensure that the evidence is accurate and to can support the ultimate findings, investigators need to properly document the investigation. Documentation must include records of what each witness stated during the interview—i.e., the investigator’s notes, written witness statements, tape recordings of the interviews, or some combination of these methods of recording.
It is fundamental that the employer assign an investigator who is properly trained, experienced, objective, skilled, and credible. Investigators should be thoroughly grounded in the concepts they are investigating and knowledgeable about both the applicable law and the employer’s internal employment policies. Good investigators must be able to develop an effective investigation plan.
The investigator selected should be someone who will not be inhibited from accurately reporting his or her findings to the employer– including “The Good, the Bad, and the Ugly.” Investigators must be free to reach conclusions appropriate to the facts. The investigator should have nothing at stake in the result of the investigation. Exclude individuals who have more than a passing personal or professional relationship with the accused or the complainant.
In many cases, the investigation will be subject to discovery and the investigator may be called upon to testify at a deposition or at trial. Therefore, it is important to choose an investigator who will be as eloquent, as he or she is competent, so that any testimony offered will be clear, confident, and convincing.
Employers should consider using outside investigators wherever high level employees are the subject of the investigation, the complained of conduct is vexing, or there are potential or actual threats of litigation. An outside attorney investigator, who is not the regular counsel to the employer, brings neutrality to the investigation and offers the option of protecting the investigation under the attorney-client privilege while the investigation is ongoing.
Confidentiality, as a general principle, must be a conscious element of every workplace investigation. Employers want to guard against investigations becoming public knowledge at the workplace.
Complainants, and even other witnesses, may request both anonymity and confidentiality as a condition to their cooperation with the investigation. But, strict confidentiality is not possible. Applying confidentiality policies to a workplace investigation entails walking around landmines. The best practice is to promise the complainant and witnesses that the employer will proceed with discretion and only share their information with those who have a “need to know.” The “need to know” group includes the employer’s HR staff or other employees involved in the investigation or in a decision making role. Furthermore, full confidentiality cannot be promised because, if related litigation is filed, the contents of the investigation may be deemed discoverable under the applicable State or federal rules of civil procedure and offered as evidence.
The investigator should advise those interviewed that they should not discuss an ongoing investigation with their coworkers. The reasons for such policies are obvious. Requesting that witnesses not discuss the investigation is consistent with representations made to complainants that the investigation information will only be shared with those with the “need to know.” Moreover, if witnesses discuss an ongoing investigation, hearsay and rumors, if not undue influence and intimidation, may take the place of facts, and the integrity of the investigation can be compromised.
A word of caution on enforcing confidentiality. The National Labor Relations Board (NLRB) has ruled that a blanket policy requiring confidentiality from employees, who participate in a workplace investigation, is an unlawful infringement with employee rights to engage in concerted activity under the National Labor Relations Act. See, Banner Health System, 362 NLRB No. 137 (June 26, 2015). This NLRB decision impacts non-union employers as well as employers with unionized workforces. According to the NLRB, employers can require employees to maintain the confidentiality of investigations only in limited circumstances where the employer can show that it has a “legitimate business justification that outweighs employees’ [NLRA] Section 7 rights.” But, exactly what those circumstances might be was left unclear. The NLRB’s Banner Health System decision has been appealed, and the appeal is pending before the U.S. Court of Appeals for the DC Circuit.
Investigations should to be conducted in conformity to general notions of a fair process. The investigator selected must be even-handed and focused upon finding actual facts, rather than seeking to prove a pre-determined conclusion. Requisite fairness means that the investigator will be impartial in reviewing and weighing the evidence, as well as in reaching conclusions.
A fair investigation ensures that the investigator will allow the complainant, the accused, and other witnesses, a meaningful opportunity to tell their side of the story. The complainant and the accused should be afforded the opportunity to identify witnesses and documents supportive of his/her version, and the investigator should follow up with interviews of new witnesses identified, as appropriate.
All witnesses should be apprised that the employer will not retaliate against any employee who participates in the investigation process.
Employers will want to affirmatively rely on their investigations as evidence that they acted promptly, fairly, and thoroughly, in response to employee complaints. However, if there is related litigation, employers must be prepared for the possibility that the correspondence, notes, recordings, documents, reports, and any other records, collected during an investigation, will have to be disclosed and the integrity of the investigation will be at issue. Therefore, employers should assume that all documents written and gathered during an investigation may be discoverable, and there will be limitations on the availability the attorney-client privilege and work product doctrine to preclude any scrutiny of the investigation, if there is related litigation.
Upon concluding the investigation, the investigator will report to the employer. The investigator must do more than simply collect the facts. There is an obligation to evaluate the facts and come to reasonable factual conclusions. In most cases, the investigator prepares a written report, summarizing the interviews and information from the documents reviewed, and provides conclusions about the allegations in the complaint. The report should provide the employer with the information necessary to make a determination about how to proceed.
Findings of fact and conclusions must be backed by relevant, reliable evidence, or those conclusions will be potentially defective and more difficult to defend. The report should include an assessment of the credibility of the parties or witnesses if relevant to the findings and conclusion reached.
The employer’s decision makers should review the investigator’s report, and other relevant evidence, as appropriate. The results of the investigation should be communicated to the complainant and the accused. If the complaint is substantiated, the employer should determine the appropriate corrective action, up to and including termination; taking into account the policy or law violated and the severity of the conduct. Regardless of the outcome of the investigation, parties to the investigation should be reminded that retaliation against employees who make complaints or who participate in workplace investigations is strictly forbidden.