Workplace investigations are part of company life. Whenever you become aware of a potentially severe problem involving colleagues or a complaint is filed because of misconduct, you are faced with tough decisions: whom should you believe? What happened and why? And what should you do about it?
Many managers and HR professionals feel anxious when faced with employee misconduct and worry about making a faux pas that could lead to legal problems for the company. On the other hand, companies that ignore complaints and allow lousy behaviour will likely face public backlash and lawsuits. This is why conducting a complete, impartial, and thorough investigation is the best move to maintain a fair and productive workplace.
How? Here is a starting guide on how to avoid the ten most common mistakes in workplace investigations.
What is a workplace investigation?
Work environments are complex. Maintaining a professional and harmonious atmosphere is crucial for the success of any organization. However, issues and disputes are inevitable despite the best efforts to create a positive workplace culture. When such conflicts arise, it becomes essential for organizations to address them promptly and effectively. This is where workplace investigations come into play.
The most common workplace problems are discrimination, harassment, theft, violence, and drug and alcohol abuse.
A workplace investigation is a meticulously systematic process undertaken by an employer to gather facts and evidence about allegations of misconduct, violations of company policies, or any other issues that could disrupt the working environment. These investigations are critical in ensuring an organization’s fairness, transparency, and accountability. They help uncover the truth, determine the extent of the problem, and provide a basis for making informed decisions on addressing the situation.
Regardless of the severity, the primary goal of any workplace investigation is to establish an accurate and unbiased account of the events in question.
Conducting an effective workplace investigation requires a thorough understanding of the legal and organizational framework within which the investigation occurs. This includes knowledge of relevant employment laws, company policies, procedures, and best practices for interviewing witnesses, collecting evidence, and documenting findings. Moreover, maintaining confidentiality and respecting all parties’ rights are paramount throughout the investigative process.
The benefits of an effective investigation
Whether you have discovered the problem through a formal complaint, an anonymous complaint, a manager or supervisor’s report, a departing employee, or workplace observation, you won’t be happy when a problem lands on your desk. However, conducting a proper investigation will help you:
- Figure out what happened
- Deal with employee problems early
- Enforce company policies
- Encourage reporting
- Avoid or counter bad publicity
- Protect your company from lawsuits.
How to conduct a successful investigation
A workplace investigation is a complex task, and as such, it should be treated like any large project: divided into smaller, manageable tasks.
Once you become aware of the problem, you can follow this outline:
- Decide whether to investigate: Even if some situations may not initially warrant an investigation, it’s important to remember that not doing so could carry significant risks. In such cases, it’s best to err on caution.
- Take immediate action if needed: Before you begin investigating, taking immediate action is crucial to protect the employee or the company. This is particularly important in serious situations such as sexual harassment or theft of company trade secrets.
- Choose an investigator: If you cannot handle the situation, you must hire someone else. The right investigator is experienced, impartial (and perceived as unbiased by the employees involved), capable of conducting themselves and testifying professionally. In many situations, it makes sense to bring in an external investigator.
- Plan the investigation: Start by organizing the information (what you already know, what needs to be clarified, who might have the relevant information, and what’s the best way of obtaining it). Organizing a plan of action can save time and help you focus on what’s important.
- Interview: The heart of any investigation is gathering information. The most basic way to do that is by asking people questions. Asking open-ended questions that encourage disclosure will help you gather the needed facts.
- Gather documents and other evidence: One of the most challenging parts of an investigation is separating opinions and lies from the facts. To find out what happened, you will need to gather evidence supporting or disqualifying the statements from the interviews. Be prepared to handle evidence that makes you uncomfortable, such as personal emails and notes, weapons, photographs, drug paraphernalia, or pornographic materials.
- Evaluate the evidence: The most challenging part of an investigation is finding the truth. You’ll have to sift through the evidence and reach a conclusion. But remember that you might need help getting to the bottom of things.
- Take action: If you conclude that an employee committed severe misconduct, you must act quickly to avoid legal liability for the employee’s behaviour and protect other employees.
- Document the investigation: When your investigation is complete, write an investigation report that details what you did and why. This will protect the company from lawsuits and provide a written record in case of future misconduct.
- Follow up: Your last step is to ensure that the problem that led to the investigation has been solved. You might have to take other steps to eradicate systemic workplace problems, such as training employees or developing new workplace policies.
Common investigation mistakes
Workplace investigations are disseminated with legal traps. These traps typically end with legal issues for the company. Incomplete, biased, or delayed investigations can throw a company into a deep hole. If the company ignores its workers’ legal rights and shows a lack of concern for the well-being of its employees, the lawsuit risks starting badly and ending even worse. Lousy investigations can also lead to wrongdoing towards innocent employees. So here are some guidelines on how to avoid the most common mistakes.
MISTAKE 1 – FAILING TO INVESTIGATE
The worst thing you could do is fail to investigate when you become aware of serious misconduct or dangerous activity in the workplace. The harm that comes from failure to take action will be the company’s legal responsibility. These are some of the scenarios you might face:
- Employees who have been victims of misconduct by other employees can sue the company for damages.
- Firing an employee for misconduct without an investigation can lead to a lawsuit for wrongful termination.
- Hiring or keeping a dangerous employee can lead to a lawsuit for negligent retention and supervision if they harm someone.
Never ignore complaints of wrongdoing, even when situations seem simple and straightforward.
MISTAKE 2 – DELAY THE INVESTIGATION
Even if you decide to investigate and do a good job, your company can get into legal trouble for waiting too long before starting the investigation. The longer you postpone it, the more serious the legal liability. In some cases, this might lead to retaliation claims from the employee who reported the misconduct. The solution is simple: don’t delay your investigation and document any reasons for the delay to take action.
MISTAKE 3 – INCONSISTENCY
Federal laws prohibit employers from making workplace decisions based on race, colour, national origin, sex, religion, age, genetic information, or disability. Handling similar situations differently can lead to discrimination claims. If you decide to investigate a claim but not another, make sure you have a valid, business-related reason for doing so. If you punish one employee more harshly than another, be prepared to justify the difference. Inconsistency is often the product of unconscious bias.
MISTAKE 4 – RETALIATION
The U.S. Supreme Court has held that any action that could deter a reasonable worker from coming forward with a complaint might constitute retaliation. Similarly, in Canada, retaliation against employees for raising workplace issues is addressed through various statutes and regulations at both the federal and provincial levels. The primary legal frameworks that protect employees from retaliation in Canada include the Canada Labour Code (CLC) and at the Provincial and Territorial levels, the Employment Standard Acts (ESA), human rights codes, and Occupational Health and Safety Acts (OHSA).
Employers commonly understand that punishing employees for bringing a workplace problem to their attention is unacceptable. However, realizing that retaliation can occur inadvertently, even when resolving the issue, is crucial. It’s essential to be mindful of this, as retaliation lawsuits can outlive the original complaint.
MISTAKE 5 – FAILING TO BE THOROUGH
Performing a sloppy or incomplete investigation can have the same consequences as failing to investigate. This is the case if you fail to interview key witnesses, neglect to review important documents, or ignore issues that arise during the investigation. Ultimately, your company won’t be able to rely on the results of your investigation in court.
MISTAKE 6 – COMPROMISING CONFIDENTIALITY
A classical faux pas during a workplace investigation is revealing too much, such as telling a witness what another witness said or stating your opinion to one of the individuals involved. This can lead people to doubt your objectivity and believe that you have already made up your mind, and therefore, the investigation isn’t fair. Also, keep in mind that employees involved in the investigation might change their statements, intentionally or subconsciously, based on what you say. Finally, if you are talking about the investigation, the entire workplace is, too. Consequently, employees who believe you have tarnished their reputation by spreading false information can sue for defamation.
MISTAKE 7 – LOSING OBJECTIVITY
It’s human nature to like some people more than others. However, when conducting a workplace investigation, you must put these opinions aside and objectively examine the evidence. If you don’t, you might be accused of discrimination, and the entire investigation might be called into action.
Investigations involving people who outrank you can be very difficult. But it’s important to remember your role and the power it holds. You are acting on behalf of the organization, and this should empower you to conduct the investigation with confidence.
If you feel influenced during the investigation, ask someone else to conduct it or bring in an external investigator.
MISTAKE 8 – STRONG-ARM INTERVIEW TACTICS
While you try to get straight answers from the people involved in the investigation, remember not to take it too far. First of all, don’t restrain workers against their will, for example, by locking the interview room door. Don’t physically prevent employees from leaving or threaten them in a way that they believe they’re not free to go: these scenarios might lead to false imprisonment claims. If the employee wants to leave, let them. The company is free to take disciplinary actions against employees refusing to participate in the investigation.
MISTAKE 9 – INVADING EMPLOYEE PRIVACY
Conducting a workplace investigation often means that you go poking around into things that someone doesn’t want you to find out. However, you shouldn’t cross the line by invading the employee’s privacy rights. If the employee feels that you have invaded a private area of their life, they might file a lawsuit for invasion of privacy. The judge will then decide the most reasonable argument with a “balancing test.” So, how can you avoid crossing that line?
SEARCHES—In some cases, such as theft or drug use, you might need to search an employee’s work area. The safest legal ground for physical searches is when the company has a policy that reserves the right to do so. If it doesn’t, even if you have compelling reasons, you should talk to a lawyer before you take action.
ELECTRONIC MONITORING – As long as your company has a policy letting workers know that it might monitor their use of the Internet, email, and other electronic communications, the company generally has the right to read employee emails sent through company equipment or monitor the websites that the employee visits using the company’s computer network. In companies with BYOD policies, privacy issues can become quite complicated. You should talk to a lawyer before you take action.
RECORDED INTERVIEWS—If you’re conducting remote interviews by phone or video, you should get the employee’s consent before recording them. This is different from monitoring phone calls. An employer can legally monitor employee conversations with clients’ customers for quality control (even if, in some states, this requires the employer to inform the parties). However, you should immediately stop monitoring if you realize conversations are private.
To avoid privacy invasion lawsuits, you can follow these principles: 1. Limit your search only to what you need to know; 2. don’t search or monitor employees without a good reason.
MISTAKE 10 – USING POLYGRAPHS IMPROPERLY
Federal laws in the United States and federal and provincial laws in Canada strictly limit the circumstances in which an employer can require workers to take a lie detector or a polygraph test. It’s very difficult for an employer to meet the criteria for using these tools properly. You should not use these tools unless your case falls into one of the law’s exceptions. Courts and legal experts generally view the use of polygraphs with skepticism due to concerns about their reliability and the potential for abuse. Employers using such methods could face legal challenges and reputational damage.
Sources:
- The Essential Guide to Workplace Investigations by Lisa Guerin, J.D. (Nolo).
- Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
- The Employee Polygraph Protection Act (29 U.S.C. 2001-2009).
- Canadian Charter of Rights and Freedoms.
- Ontario Employment Standards Act, 2000, Section 15.
- Quebec Charter of Human Rights and Freedoms.
- Personal Information Protection and Electronic Documents Act (PIPEDA).
