A Step-by-step guide for addressing allegations of misconduct

Workplace investigations are essential for mitigating organizational risk, addressing employee complaints, and maintaining a harmonious work environment. This guide provides a step-by-step process for conducting a thorough investigation.

Contents

• Step 1. Respond promptly to any reports or complaints received.
• Step 2. Assess whether an investigation is required.
• Step 3. Consider placing the accused on leave.
• Step 4. Plan the investigation.
• Step 5. Select a qualified investigator.
• Step 6. Conduct and document interviews.
• Step 7. Gather evidence.
• Step 8. Evaluate the collected information.
• Step 9. Provide an information summary to decision-makers.
• Step 10. Take responsive measures.
• Step 11. Document the investigation.
• Step 12. Close the investigation.

Step 1. Respond promptly to any reports or complaints received.

Every claim should be taken seriously. Action should be started immediately to ensure the protection of both employees and the organization. It is crucial to document the preliminary findings even if the complaint doesn’t merit a full workplace investigation.

Step 2. Assess whether an investigation is required.

Employers are legally required to promptly investigate some complaints, such as suspected illegal activity or allegations of discrimination or harassment. In contrast, others may not rise to the level of a formal workplace investigation. The following reports or complaints, including anonymous claims, should trigger a workplace investigation:

• Allegations of discrimination or harassment
  Claims of discrimination or harassment, including but not limited to sexual harassment, legally require an immediate investigation regardless of perceived credibility. This is especially true where federal or state-protected classes are concerned.
• Suspicion of misconduct or wrongdoing
  Events may occur where unusual or suspicious activity is brought to the company’s attention. Observant employees and managers might notice behaviors or changes in the workplace that raise concern. When something seems awry, an investigation can confirm or refute suspicions and prevent an issue from escalating.
• Illegal activity
  Any allegations of criminal activity should be investigated and documented thoroughly. If evidence confirms illegal activity, it should be reported immediately to the appropriate local or federal agency.
• Whistleblower reports
  A whistleblower is defined as an employee who exposes wrongdoing, often of an illegal nature, occurring within the company. Individuals may conceal their identity when reporting this type of misconduct. Regardless of perceived credibility, these reports can have severe repercussions and should be investigated swiftly, precisely, and carefully documented.
• Official or unofficial reports of misconduct
  Misconduct is defined as inappropriate or unprofessional behavior that violates company policies or rules. A workplace investigation should always occur when an employee, customer, vendor, or other person brings a misconduct claim to the company.
• Accidents or incidents relating to safety
  Workplace accidents and safety concerns should be documented and addressed to prevent further harm or damage. If these incidents cause or could lead to health and safety concerns, they should be investigated regardless of the severity.
• Findings from an audit or uncovered during routine operations
  Organizations may learn of misconduct, wrongdoing, or ethical lapses in the workplace during daily operations or through an audit. For example, reconciliations may identify ongoing financial discrepancies that should trigger an investigation.
• Citations or findings from government agencies
  Any concerns or citations brought to a company’s attention from a government agency should be taken seriously, investigated promptly, and followed up with appropriate remediation.
• Lawsuits
  Any lawsuit threatened or brought against an organization should trigger a thorough investigation with a heavy emphasis on gathering relevant evidence.

Step 3. Consider placing the accused on leave.

Depending on the circumstances, you may need to consider placing the alleged wrongdoer on a paid or unpaid leave of absence until the conclusion of the investigation to prevent the potential for further misconduct or interference with the investigation.

Step 4. Plan the investigation.

Review the initial complaint and decide what steps need to be taken. Important considerations include determining who needs to be interviewed, preparing interview questions, and establishing a time frame for completing the investigation.

CAUTION: Be aware of potential retaliatory actions against the complainant. Transferring a complainant, reassigning them to a different position, or changing their work schedule may be well-intended but could appear retaliatory and result in a retaliation claim.

Step 5. Select a qualified investigator.

The person in charge of handling the investigation should be an unbiased party. Many investigations can be conducted internally, but it is essential to evaluate whether the claim puts impartiality at risk. When assigning the investigation to an internal employee, it is highly recommended that they receive training or certification to conduct workplace investigations to ensure a legally sound process.

It is best to contract with a third-party investigator if:

• You do not have a qualified internal investigator
• Your internal investigator has personal relationships with the employees involved
• Allegations concern a senior-level employee that could make the investigator worry about job security
• It will be challenging to avoid bias or the appearance of bias
• There is a significant legal risk

Step 6. Conduct and document interviews.

Outline the questions you want to ask ahead of time. Ensure they are clarifying and open-ended questions. Some details uncovered will be less relevant, and interviews have the potential to get sidetracked. It is important to remain on task and collect only information pertinent to the claim being investigated.

• Interview the complainant.
  Gather as many details as possible from the complainant about the allegations. This interview is the complainant’s opportunity to provide their perception of the circumstances and the alleged inappropriate or unlawful conduct. Take note if they indicate that anyone else was present and request any supporting evidence such as pictures, emails, texts, etc. In some cases, this may be an emotionally charged interview; maintain a supportive and non-judgmental posture.
• Interview alleged wrongdoer.
  Interviewing the accused will likely be uncomfortable but necessary. The purpose of this interview is solely to gather facts: do not make assumptions. This is an opportunity for the employee to provide their side of the story. It is important to ask open-ended questions and gain insight into the working and personal relationship between the accused and the complainant. Allow them to respond to each complaint made, ask about any potential witnesses, and always remember to document every conversation thoroughly. Review the employee files to identify and address any patterns that may cause concern.
• Interview witnesses.
  Collect important and relevant information about the accusations only. Avoid revealing too many details about the complaint. The goal is to uncover any corroborating evidence without influencing the responses.

PLEASE NOTE: All investigation documentation should remain confidential and not be stored in an employee’s personnel file. Do not guarantee confidentiality. Not all information can be kept confidential in a workplace investigation. However, explain that information gathered will be withheld from their personnel files, handled with discretion, and used only to the extent necessary for a thorough investigation.