How to Conduct a Workplace Investigation

No one looks forward to initiating a workplace investigation, but being prepared to do so after a complaint from an employee is a key part of an HR professional’s job. Conducting thorough investigations does more than simply keep companies out of legal trouble. It also maintains organizational integrity, establishes fair treatment, and fosters a positive work environment.

Being prepared is also important because time is of the essence after a worker’s complaint. Many laws require complaints to be addressed in a timely manner, and also, an investigation is often more effective the sooner after an incident it is conducted. This guide outlines best practices for workplace investigations to make sure everyone involved is protected when investigating harassment, discrimination, retaliation, safety, or ethical complaints.

1. Discuss Confidentiality

Explain to the complaining party and all individuals involved in the investigation that all information gathered will remain confidential to the extent possible. For a thorough investigation, some information will be revealed to the accused and potential witnesses, but that information should be shared only on a “need to know” basis.

Never promise absolute confidentiality to any party involved in the investigation. Here are tips on walking that fine line. 

Keep in mind: Requiring that participants keep an investigation confidential can be seen as interference with employees’ right to engage in concerted activity under the National Labor Relations Act. 

If a disclosure of sensitive information is necessary, employers should consider what the minimum information needing to be revealed is.

2. Provide Interim Protection

When an employee makes a complaint, one of the first considerations may be whether to take immediate measures for the protection of the accuser or the alleged victim. Separating the complainant from the accused may be necessary to guard against continued harassment or retaliation.

A schedule change, transfer, or leave of absence may be necessary, but such actions should be weighed against the burden they cause to the employee. Complainants should not be involuntarily transferred, for example, because these types of actions could appear to be retaliatory and result in a retaliation claim. The employer and the accuser must work together to arrive at an amenable solution. Employers may wish to seek legal advice prior to making any decisions.

3. Create an Investigation Plan

Going through a planning process can save time on the investigation in the long run.

“Having a basic outline of your investigatory process, an initial list of witnesses, and an initial review of documents and videos on the front end can save you a lot of time on the back end,” recommended Martha Boyd, an attorney with Baker Donelson in Nashville.

• Define scope and objectives: Given that every complaint has the potential to become a lawsuit, employers should investigate every case so it could be presented in a court of law should that become necessary. In cases of harassment, the U.S. Equal Employment Opportunity Commission recommends specific steps that employers should take, including complaint procedures, training, investigations, and corrective action.
• Establish methods and a timeline: A complete plan should include an outline of the issue and the specific policy violations being alleged. It should also include the development of a witness list, sources for information and evidence, interview questions targeted to elicit crucial information and details, scheduling, and a process for retention of documentation such as interview notes and emails that could be treated as evidence.
• Identify the investigator: The plan should also identify whether someone other than HR is doing the investigation. HR typically conducts such a probe, but employers sometimes tap internal security, legal counsel (inside or outside), or a third-party investigator. A union representative or an attorney representing the employee might also be present.
• Develop interview questions: The framework should be developed ahead of time in the planning stage, although additional questions will be added throughout the investigation as more evidence and information are shared. Good questions are relevant and designed to draw out facts without leading the interviewee; they should be open-ended to elicit as much information as possible. SHRM has sample questions for the accuser and for the witnesses.
• Consider where to conduct interviews: Many investigations come to light when employees see a parade of witnesses going into a conference room or the HR office. Meeting in a more private place can help employees speak more freely. Interview nonemployees—such as former employees, customers, and clients—only when it becomes essential.

4. Conduct Thorough Interviews and Gather Evidence

Be sure to identify and secure all relevant evidence—such as emails, documents, and witness statements—and review them before conducting interviews whenever possible.

• Explain the process: The investigator should inform all parties involved of the need for an investigation and explain the investigation process. Remind everyone that confidentiality is not absolute. Ideally, policies should be in place—either in the code of conduct or elsewhere—that require employees with potential knowledge of violations of policy or the law to cooperate in the employer’s investigations; remind interviewees of this, as well.
• Remain impartial: The investigator should focus on being impartial to gather and consider relevant facts and should not push the investigation in any particular direction. The investigator should never offer any opinion or say anything to interviewees that could discredit their impartiality.
• Identify inconsistencies: Look for inconsistencies and seek opportunities to gather more evidence and the names of other potential witnesses. Asking the employee to write down what happened may help with finding inconsistencies. There may be a disparity between what the employee is willing to write and what they told you in the interview. Investigators should be cautious when conducting interviews to avoid any harsh interrogation tactics that could result in charges such as coerced false confessions or false imprisonment.
• Document: Maintain notes throughout the interviews; they are a key part of the documentation of the investigation. Whenever possible during an interview, have a third person in the room who can serve as a witness and take thorough notes.
• Consider credibility: The interviews will likely provide differing, potentially conflicting versions of the events. Because workplace conflicts are very personal, individual perceptions of what happened may be clouded by personal interests. If employees’ jobs are on the line, they may even lie. Investigators must consider the credibility of the individuals being questioned during an investigation and use various techniques (e.g., inherent plausibility, ability, demeanor, motive, motive to falsify, corroboration, past behavior, and past accusations) to assess credibility. The investigator may need to re-interview subjects to fact-check information that is revealed in subsequent interviews.

5. Make a Determination and Communicate It to All Parties

Through the investigation, the investigator must be careful not to jump to any conclusions before all the facts are available. After the interviews are conducted, other necessary procedures, such as evidence collection, should be completed. Once any credibility issues have been resolved, the investigator will evaluate all the information, prepare an investigation report outlining findings, make a formal determination of whether policies were violated, and make any recommendations for corrective actions.

The report should include:

• Incident or issues being investigated, including dates.
• Parties involved.
• Key factual and credibility findings, including sources referenced.
• Employer policies or guidelines and their applicability to the investigation.
• Specific conclusions.
• Party (or parties) responsible for making the final determination.
• Issues that could not be resolved and reasons for lack of resolution.
• Employer actions recommended.

The investigator or a member of management, as well as legal counsel if necessary, should make the final determination of any employment actions that are warranted based on the investigative report. The employer must consider all the parties involved as well as organizational processes, not just whether the accused is guilty, in the final determination.

Once a decision is made, the employer should notify both the complaining employee and the accused of the outcome. It is important to let the complainant know that the organization took the complaint seriously and took appropriate action. The organization must ensure the complainant agrees that they have been properly heard and understood, even if they are not in agreement with the results.

6. Close Investigation and Implement Any Corrective Actions or Disciplinary Measures

When necessary, employers must take corrective action that is appropriate to the situation, such as discipline or even termination. Less-severe disciplinary measures could include warnings or suspensions in accordance with company protocols and the severity of the misconduct.

The employer should also look at any damages incurred by the victim and discuss with legal counsel how to remedy those damages.

Here are a few corrective actions that might need to be taken:

• Employee training and development: Determine if education, such as sexual harassment prevention training or anger management training, would be beneficial to the individual or all employees. Implement targeted training sessions to address knowledge gaps and ensure compliance with policies and legal standards.
• Policy revision and implementation: Consider reviewing, modifying, redistributing, or writing new workplace policies on identified issues to ensure clarity in workplace expectations and procedures.
• Mediation and conflict resolution: Facilitate dialogue between parties to resolve misunderstandings and create a more cohesive work environment.
• Monitoring and compliance audits: Establish regular audits to ensure adherence to policies and continued improvement in workplace practices.
• Reassignment of duties: Alter roles or responsibilities to eliminate conflicts of interest or disruptive dynamics within teams.

7. Finalize Investigation Report and Follow Up with Affected Parties

At the close of the investigation, your final report should not only document the findings and corrective actions taken but also serve as a clear paper trail. If every investigation of a serious nature could potentially be heard and reviewed by a court, the investigator should have a clear record of everything done and any findings as well as other steps taken during the inquiry. Employers should document interviews with the accused, the accuser, and witnesses, ensuring notes are as factual as possible, contain as much relevant information as possible, are dated, and indicate the duration and time of the interviews.

Finally, the investigator should set a time frame to follow up with the complainant to ensure that there are no other issues and they are settling back into the work environment. The employer should encourage communication and follow-up conversations until the complainant is comfortable again. Finally, the investigator should remind all parties to preserve confidentiality as appropriate.

Related Resources:

SHRM Seminar: Leading Workplace Investigations

Become an Investigation Pro with SHRM’s Workplace Investigations Specialty Credential

7 Tips for Effective Employee Disciplinary Meetings

Uncivil Managers May Not Be Breaking the Law but May Be Unwelcome

Best Practices in ‘He Said, She Said’ Workplace Investigations in Australia

Practical Ways to Reduce Workplace Theft

5 Ways to Strengthen Your Anti-Harassment Complaint Process