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.
- 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.
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.
Step 7. Gather evidence.
Collect all documents related to the investigation, including emails, texts, recorded phone calls, surveillance footage, past complaints, personnel files of the accused and the complainant, and other relevant evidence. It is essential to be detail-oriented and thorough when investigating to uncover the necessary information.
Step 8. Evaluate the collected information.
Determine which statements and evidence are relevant to the investigation and which are not. Include all relevant information in the final report of the workplace investigation. The time it takes to complete a thorough investigation varies depending on the unique circumstances. Keep in mind that there is a delicate balance between being comprehensive and letting an investigation drag on too long.
In some cases, a credibility assessment may be required. When accounts of events differ, the U.S. Equal Employment Opportunity Commission suggests using the following factors to assess witness credibility:
- Corroboration of events.
Are there documents or witness statements that support a version of the events?
Is the individual’s version of the facts believable? Does it make sense?
Does the person have a reason to lie?
- Past record.
Does the person or the accused have a record of inappropriate conduct?
Step 9. Provide an information summary to decision-makers.
Prepare the summary investigation report using all the relevant information collected from interviews and evidence into a cohesive and detailed document for review. The report should summarize the following:
A summary of the allegation(s)
- Parties involved.
A list of the parties involved, including witnesses who were interviewed as part of the investigation
Statements of individuals involved and factual findings, including any supporting documentation obtained and specific dates
- Findings and recommendations.
A summary of the findings with recommended actions based on company guidelines
Step 10. Take responsive measures.
Once the evaluation of interviews and gathered evidence is completed, decision-makers should review the summary investigation report to determine if and what actions need to be taken. It may be necessary to seek legal counsel in some cases. The criteria for making a determination and taking responsive measures include:
- Consideration of all parties involved.
Carefully consider the testimony provided during interviews and its credibility. Credibility should be based on a credibility assessment, not personal feelings.
- A Review of all the facts.
Carefully consider all the information that has been gathered, including evidence.
- A Review of workplace policies.
Determine if there was a violation of your documented company policies.
- Determine appropriate disciplinary action
If a violation has been discovered, define the appropriate disciplinary or corrective action. Actions should be based on the findings, the level of misconduct, and aligned with the company’s disciplinary guidelines. Appropriate measures may include termination, required training, policy and procedural updates, or other remedies.
Ensure prompt follow-through with all actions from the determination.
Step 11. Document the investigation.
It is essential to keep detailed records and document all relevant information, including:
- The Complaint.
Capture all details of the complainant’s initial claim.
Keep a detailed timeline of events that is maintained and continually updated.
Carefully document the interviews of the complainant and the accused, including the questions asked, responses, credibility assessment of the complainant and the accused, and any written statements.
- Witness Interviews.
Keep a record of all witness interviews, including the questions that were asked, responses, the credibility of witnesses, and written statements.
- Final Report.
Create a final report summarizing findings – it’s imperative to avoid any legal conclusions.
- Follow-up Actions.
Document all actions that the company took in response to the investigation.
PLEASE NOTE: All investigation documentation should remain separate and confidential; investigation files should not be stored in an employee’s personnel file. The only record from an investigation that should be in a personnel file is the disciplinary action taken as a result of the investigation.
Step 12. Close the investigation.
Once a determination has been made, it’s essential to follow up with the person who filed the complaint and the accused to inform them that the investigation is complete.
PLEASE NOTE: No party, including witnesses or the person who made the complaint, should be informed of the disciplinary or remedial actions taken.