Workplace Investigations: When Needed and Best Tips
How to Conduct a Workplace Investigation
Workplace investigations are a necessary but often difficult part of managing a business.
Workplace investigations can be complex and time-consuming, but it is important to conduct them thoroughly and fairly. Not only are they good business practices, but they are often legally required when an employer is put on notice of potential illegal activity in the workplace. This blog post will provide an overview of workplace investigations, including when to conduct them and how to best go about doing so.
Defining Workplace Investigations.
A workplace investigation is an examination of a potential violation of an organization's policies or procedures, typically in response to an employee complaint or inquiry. The purpose of a workplace investigation is to gather facts and evidence to determine what if any, policy or procedural violation occurred and to make recommendations to prevent future incidents or take remedial actions.
There are many types of workplace investigations, but they usually all have one goal in common: to determine what happened based on a preponderance of the evidence (more likely than not). Some examples of workplace investigations include:
Investigations into allegations of harassment, discrimination, or retaliation
Investigations into allegations of theft, fraud, or other financial misconduct
Investigations into allegations of violence or threats of violence
Investigations into compliance with safety policies and procedures
Investigations into compliance with company policies and procedures
Workplace Investigations Not Defined.
It is important to respond quickly and appropriately when an employee complaint arises. Depending on the severity of the situation, companies may decide to resolve it through informal discussions between involved parties or by using internal procedures such as those offered by a human resources department. In some cases, however, external expertise outside of company management could be required for a thorough and unbiased investigation led by a third-party investigator. To ensure that all matters are handled with care and fairness, prompt action must always be taken in response to any employee concerns.
When to Conduct a Workplace Investigation.
Under certain circumstances, employers may have a legal obligation to conduct a workplace investigation. For example, an employer may be required to investigate allegations of harassment or discrimination under federal or state law. Additionally, some workplaces have internal policies that require investigations under specific circumstances.
In general, an employer should investigate any situation that could potentially give rise to liability or situations that involve potential misconduct under the law. By conducting an investigation, the employer (or their investigator) can gather information and determine whether there is merit to the allegations. Additionally, even if the allegations are not ultimately substantiated, the investigation can help prevent future problems by sending a message that misconduct will not be tolerated in the workplace and that concerns about issues in the workplace are taken seriously.
Ethical Considerations for Investigations.
Even in limited situations where there is no legal obligation to investigate, employers may still choose to do so for ethical reasons or because of adherence to their core values or company culture. For example, if an employee comes forward with allegations of misconduct, the employer might feel it is important to look into the matter in order to protect other employees from potential harm. Additionally, investigations can help maintain a positive work environment by promoting transparency and addressing concerns promptly.
Management Prerogative to Investigate.
In some cases, an employer may elect to conduct an investigation even if there are no specific allegations of misconduct. For example, an employer might want to investigate a sudden increase in absenteeism among employees in a particular department, employee attrition, or examine hiring practices. By doing so, the employer can identify any potential problems and take steps to address them before they become more serious issues. Being proactive is key.
How to Conduct a Workplace Investigation.
The first step in conducting a workplace investigation is to plan the investigation. This planning should include identifying the goals of the investigation, determining who will be involved in the investigation, and deciding how the investigation will be conducted.
Who Conducts an Investigation?
While some situations may be investigated internally (such as with an employer's Human Resources department), there may be other types of complaints that are best investigated by an outside, third-party investigator. A third-party investigator may minimize the perception of bias and help to ensure complaints are handled fairly. Some jurisdictions regulate workplace investigations, and it is important to ensure that the individual or entity selected to investigate is permitted to do so under the laws where the investigation will take place. For example, some states provide that only a state-licensed investigator (like a licensed private investigator) or state-licensed attorney can conduct workplace investigations (in addition to in-house employees). An investigation conducted by someone who is not otherwise permitted to conduct investigations in that jurisdiction can have negative consequences. For example, under California law, "any person who is not exempt and not licensed and conducts an investigation is “guilty of a misdemeanor punishable by a fine of five thousand dollars ($5,000) or by imprisonment in the county jail not to exceed one year, or by both that fine and imprisonment.” (Cal. B&P Code § 7523(b).)
Not only can the unlicensed investigator be subject to criminal penalties but the company may, too (a person who “knowingly engages a nonexempt unlicensed person” to conduct an investigation can be subjected to the same criminal punishment. (Id.) Such action may also carry civil liability, as well, under Cal. B&P Code § 7523.5.
Once you have established who will conduct the investigation, you should determine the goals of the investigation.
Determining Goals of a Workplace Investigation
The goals of the investigation should be clear from the outset. The chosen investigator(s) should have a good understanding of what they are trying to accomplish with the investigation. Are they trying to determine whether or not a policy was violated? Are they trying to identify the responsible party for an incident? Once the goals of the investigation are clear, it will be easier to develop a plan for achieving those goals.
Identify Potential Witnesses
Determining who will be involved in the workplace investigation is also an important part of planning. Will the investigators be talking to witnesses? Will they be reviewing documents? Each type of interview requires different preparation, so it is important to know who will be involved in order to plan accordingly.
Finally, it is important to decide how the workplace investigation will be conducted. Will it be reduced to a full report? Are the allegations the type that requires in-person interviews? What evidence may support or shed light on the allegations? Depending on the type of information that needs to be gathered, different methods may need to be used.
Conducting The Investigation
Once the planning stage is complete, investigators can begin conducting their investigation. During this stage, investigators usually collect evidence and information from witnesses and other sources. They may also interview witnesses as part of their inquiry. The goal during this stage is to gather as much relevant information as possible so that investigators can make an informed decision about the complaint based on a preponderance of the evidence.
The specific methods used during this stage will vary depending on the type of information being sought and the resources available. However, there are some general principles that should always be followed when conducting an inquiry:
Be thorough: All relevant evidence and information should be collected during this stage so that nothing is missed later on. This means talking to all potential witnesses, reviewing all relevant documents, and considering all possible angles before making any conclusions about what happened.
Be objective: Investigators should avoid letting personal biases or preconceptions cloud their judgment during this stage of inquiry. It is important to approach each piece of evidence with an open mind and consider all possibilities before making any conclusions about what happened or who was responsible.
Be prompt: While it is important for an investigator to be prepared for the investigation, it is equally important for a company to take prompt action to investigate any complaint. In certain circumstances, an employer's failure to take prompt action when put on notice of an employee complaint can increase the chances of employer liability in the event litigation ensues.
Best Practices for Workplace Investigations.
The best workplace investigations are the ones that leave no stone unturned. When an allegation of misconduct is made, it is important to conduct a thorough investigation in order to get to the bottom of what happened. This means talking to all relevant parties, reviewing all relevant documentation, and taking whatever other steps are necessary to get a clear understanding of what occurred.
Be Fair.
Workplace investigations must be conducted fairly in order to be effective. This means treating all parties involved equally and giving them each an opportunity to tell their side of the story. It also means avoiding conflicts of interest and ensuring that the investigation is unbiased. If an investigator anticipates they may not be able to set aside their biases or otherwise encounters a potential conflict of interest, the investigator should promptly notify the company so that they can determine an alternative investigation strategy.
Be Confidential.
Workplace investigations must be kept as confidential as possible in order to protect the privacy of those involved.
Key Takeaways for Workplace Investigations.
Workplace investigations are typically conducted to gather information about allegations of misconduct. The purpose of the investigation is usually to determine what happened, who was involved, and whether the misconduct violated company policy.
Depending on the situation and where the investigation is conducted, investigations may be conducted by an outside firm (such as a third-party investigator), by in-house counsel, or by a team of experienced employees. The decision of who will conduct the investigation is an important one and should be determined from the outset.
When to Conduct a Workplace Investigation.
There are three main reasons to conduct a workplace investigation: legal obligations, ethical considerations, and management prerogative.
Legal obligations typically arise when there is a complaint of harassment or discrimination. Ethical considerations may require an investigation even in the absence of a legal obligation, such as when there are allegations of serious misconduct. Management prerogative refers to the right of management to investigate alleged wrongdoing, even in the absence of legal or ethical considerations.
How to Conduct a Workplace Investigation.
The first step in conducting a workplace investigation is to plan the investigation. This includes deciding who will conduct the investigation, setting timelines, and identifying witnesses and evidence. The second step is to conduct the investigation itself, which typically involves interviews with witnesses and a review of relevant documents. The third and final step is to wrap up the investigation, which includes writing a report and taking appropriate disciplinary action or remedial action if warranted by the findings of the investigation.
Best Practices for Workplace Investigations.
There are four best practices for workplace investigations: be thorough, be prompt, be fair, and be confidential.
Thoroughness means that all relevant witnesses should be interviewed and all relevant documents should be reviewed. Fairness requires that the investigation be conducted without bias and that all parties have an opportunity to present their side of the story. Confidentiality means that the investigation should be kept as confidential as possible to protect the privacy of those involved and to avoid jeopardizing the integrity of the investigation.
Key takeaways:
Workplace investigations are conducted to gather information about allegations of misconduct in order to determine what happened, who was involved, and whether the misconduct violated company policy.
The decision of who will conduct a workplace investigation may be made based on the severity of the allegations, the need for specialized experience (such as an employment attorney), and the potential for conflict of interest or bias as well as legal considerations of who may legally conduct an investigation.
Legal obligations, ethical considerations, and management prerogative are the three main reasons to conduct a workplace investigation.
The first step in conducting a workplace investigation is to plan the investigation by deciding who will conduct it, setting timelines, and identifying witnesses and evidence.
Be thorough, fair, prompt, and confidential when conducting a workplace investigation.
In conclusion, workplace investigations are a necessary part of maintaining a healthy and productive workplace. By definition, a workplace investigation is an assessment of allegations made against an individual or group in the workplace. These allegations can be anything from discrimination to harassment. It is important to note that not all workplace complaints require an investigation – sometimes, informal resolution may be more appropriate.
When deciding whether or not to conduct an investigation, there are several factors to consider. First, you must determine if there is a legal obligation to investigate. Second, you should consider any ethical implications of the allegations. And finally, you should weigh the management prerogative to investigate – in other words, decide if the interests of the company would be best served by conducting an inquiry.
If you do decide to conduct an investigation, there are certain steps you must take to ensure it is done properly. First, you must plan the investigation carefully. This includes identifying the scope of the inquiry and setting clear objectives. Next, you will need to actually conduct the investigation itself. This involves collecting evidence and interviewing witnesses. Finally, the company should determine what, if any, remedial action needs to take place in light of the findings. In some circumstances, an investigation may include a final report, whether in writing or delivered to decision-makers orally.
There are also certain best practices that should be followed when conducting workplace investigations. First and foremost, investigations should always be thorough and prompt. They should also be fair – meaning that everyone involved should be given a chance to tell their side of the story. And finally, confidentiality must be maintained throughout the process.
Considering a workplace investigation for your company? Schedule a free consultation with Wagner Legal today to discuss our third-party workplace investigation services. Don’t forget to subscribe to receive the Legal Cut, a newsletter built to keep you informed with the latest legal insights of the entertainment industry!
