By: Anne McCord
Best practices in workplace investigations require a prompt and thorough investigation when complaints about misconduct are reported. Employers want to demonstrate that they take the complaint seriously, thus a prompt response to the concern is warranted. Employers also need to ensure the investigation is thorough enough to make sound findings that enable good decisions.
Sounds simple, right? In theory, yes…. But in practice this can be a challenge in both internal and external workplace investigations.
Tactics that help ensure a prompt investigation include a clearly defined investigation scope and a well thought out investigation plan. With this starting point, the investigator is equipped to launch the investigation, typically by interviewing the complainant first. Importantly, the investigator should reconnect with the client (HR, Legal Counsel) after the complainant interview to ensure the planned scope is acceptable and to flag any additional scope items that may be necessary to complete the investigation.
Promptness can be improved when identified witnesses are encouraged to meet with the investigator in a timely manner. In person investigations tend to be more prompt as the client will maximize the time the Investigator is on-site. This also allows the Investigator to interview ad hoc witnesses as information unfolds.
Virtual investigations tend to take longer for a variety of reasons. Many times witnesses are not given a timeframe to meet with the Investigator and interviews can be delayed for days and even weeks. It is important for the Investigator to manage these challenges quickly and to work closely with the client to expedite introductions and encourage timely participation.
Ensuring a thorough investigation is at the Investigator’s discretion, as they must collect enough information from witnesses and relevant documents and electronically stored information to make a finding under the preponderance of the evidence standard. It is not uncommon for a client to presume an investigation will be speedy, yet the Investigator may need to meet with more witnesses than originally anticipated, or to review significant documentary evidence to reach a firm finding. Skilled Investigators recognize the need to pursue relevant information (and avoid interesting but not important information) under the scope, and to manage client expectations along the way.
Finally, there is a misconception that once the interviews are concluded and documents have been received, the Investigator will conclude the information at that time. However, thorough analysis of the data is required to ensure the Investigator is weighing all data from which to reach a finding. At times the Investigator will identify the need to gather additional information or re-interview witnesses once the analysis begins. These factors typically delay the conclusion of the investigation.
In the end, a thorough investigation is necessary for the Investigator to provide useful information to the client from which to make decisions. To balance the expectation of promptness, the Investigator must clearly and routinely communicate with the client to ensure expectations are maintained and the investigation has a conclusion that stands up to external scrutiny.