ADP^® HR411^® TIP OF THE WEEK
10 Steps to Investigating Workplace Complaints

May 13, 2013

Employers have a responsibility to conduct a prompt, thorough, and impartial investigation upon learning of certain allegations of wrongdoing in the workplace. The goal of the investigation is to gather the facts of the case and to determine whether misconduct has occurred so that appropriate corrective action can be taken to prevent reoccurrence. When conducting an investigation, consider the following:

1. Avoid promises of confidentiality. An employer should protect the confidentiality of an investigation to the best of their ability; however, it may not be possible to keep all information completely confidential. Explain to the complaining party, and all individuals involved in the investigation, that information gathered will remain confidential to the extent possible for a thorough investigation.
   
   
2. Decide if immediate action is necessary. Once a complaint is made, employers should consider whether it’s necessary to separate the employees involved. This may be accomplished by making adjustments to the work schedule, by transferring one or both parties, or by suspending the employee who is the subject of the complaint pending the outcome of the investigation. Note: The complaining employee should not be involuntarily transferred or burdened. An employer should always ask the complaining employee what option would make them feel less intimidated, uncomfortable or threatened.
   
   
3. Decide who should conduct the investigation. After deciding whether immediate action needs to be taken, decide who will conduct the investigation. Some options may include human resources personnel, internal security, legal counsel (inside or outside), or a third-party non-legal investigator. When making this decision keep in mind that the person conducting the interview must be impartial. For example, the accused shouldn't have supervisory authority over the investigator. When possible, more than one individual should be involved in the investigation, including acting as a witness during interviews.
   
   
4. Prepare for interviews. Prior to beginning the investigation, determine who will be interviewed (i.e., the accuser, the accused, and any witnesses) as well as the order in which the interviews will be conducted. Wherever possible, the investigator should conduct interviews in the following order: (1) complaining party – in order to obtain the names and contact information of any of the potential witnesses; (2) witnesses – to capture their recollections as close as possible to the event; and (3) the subject of the complaint - so that the investigator can compare his/her version of the events to those of all others involved. Prior to the interviews, prepare a list of questions, plan to have an impartial witness present, and arrange to conduct the interviews in a private location.
   
   
5. Conduct interviews. When conducting the interviews, the investigator should inform all parties that an investigation is being conducted, explain the issue of confidentiality, and then describe the investigation process. The investigator should never offer any opinion or say anything to interviewees that will discredit his or her impartiality. When interviewing the parties, the investigator should take notes and look for inconsistencies, opportunities for clarification and additional evidence, and the names of other potential witnesses.
   
   
6. Make credibility determinations. Interviews may provide differing accounts and even conflicting versions of the events. Investigators must consider the credibility of the individuals questioned when evaluating the evidence.
   
   
7. Compile evidence. Oftentimes witness statements are not the only evidence to support or refute an allegation. There may be pictures, emails, texts, or Internet posts relevant to the complaint. Employers should be sure to compile as much evidence as possible in order to conduct a thorough investigation.
   
   
8. Reach a conclusion. Following the interviews and a careful review of the evidence, the employer should notify both parties of its decision. When sharing the results with the complainant, make sure he or she agrees that they have been properly heard and understood, even if he or she is not in agreement with the results. Additionally, set a timeframe to follow up with the complainant to ensure the conduct is no longer occurring.
   
   
9. Create an investigation report. Any report compiled by an investigator should include: (1) a chronology of events; (2) a list of witnesses; (3) evidence obtained; (4) the conclusions made; and (5) the recommended corrective action to be taken.
   
   
10. Maintain an investigation file. Maintain an investigation file separate from personnel files. The file should include: (1) all interview notes; (2) all communications with witnesses; (3) all written witness statements; (4) all documents that support/refute the allegation; (5) the investigator’s report; and (6) all documentation of notification of investigation results and any remedial action taken.

Considerable care should be taken to ensure that workplace investigations are conducted effectively. Employers should consider consulting legal counsel as needed.