Employee investigations are a common occurrence in any workplace. Whether it’s employee relation issues or disciplinary investigations, managers need to address them quickly and efficiently.
Types of Investigations
There are two main categories of investigations – internal and external Investigations. Each category has distinct requirements, but generally follows the same steps in execution.
- Internal Investigations – These investigations involve the following topics:
- Violations of workplace rules – An example of this is the violation of a workplace policy, such as alcohol/drug, Internet usage or Corporate Compliance.
- Job related misconduct – This includes performance and insubordination issues.
- Workplace Complaints – This may include lawful and unlawful workplace discrimination and harassment.
- External Investigations –
- Criminal activity – This applies to any criminal activity punished by law, including physical violence and theft.
- Government agency claims – EEO claims, Department of Labor, or ERISA violations or
Regardless of whether a situation is internal or external, it will be handled similarly. If an internal situation violates any local, state or federal laws, a manager will need to reach out to the proper authorities to report it. The FSI Corporate Compliance department may recommend some internal investigations to require a third-party investigator. Be sure to check with them if you have any questions.
All investigations must follow these main guidelines:
- Conducted Promptly
- Remain Private/Confidential
- Free of Retaliation
Employee investigations can make any manager uncomfortable. With the right tools and planning, the process can become more manageable and ensure that employee concerns are quickly addressed and taken seriously.
Steps in Conducting Investigations
Below is a step-by-step process in starting an investigation:
When a manager receives a complaint, he or she should address the concern immediately with the complainant. Thank the employee for bringing up the concern and assure him or her that the concern will be investigated and maintained as confidential to the extent possible for a thorough investigation and only disclosed to employees having a legitimate need to know. Mention the following important points:
- Explain that he or she is not prohibited from speaking with others about the concerns, but there is potential impact that the communication may have on the assessment of witness testimony.
- Tell the employee that the investigator will get back to him or her during the investigation and that his or her continued cooperation in the investigation is necessary to reach a resolution.
- Ask the employee how he or she thinks the matter could best be resolved. Does he or she have any suggestions or preferred resolutions?
- Let the employee know the organization will make the final determination to resolve the issue in the best way. The employee’s input is valuable and will be considered seriously.
- Thank the employee again for raising the issue and commit to resolving the matter in a timely fashion.
Depending on the allegation, the employee or complainant may need to be protected by the accused. The best solution is to schedule a change, transfer or leave of absence only if necessary and only if it isn’t involuntary or burdensome to the complainant. The manager should ensure that the complainant is protected from any retaliation for bringing up the issue at the beginning and through each step of the process, including the final decision. It may also be wise to seek legal advice if this seems to be in the best interest.
In most cases, HR, internal security or legal staff conducts the investigation. If your ministry doesn’t have one of these functions, make sure the individual assigned to the task has the following qualities:
- Ability to remain unbiased and uphold confidentiality.
- Not directly or indirectly involved or stakes in the outcome.
- Prior investigative knowledge and experience and working knowledge of employment laws.
- Strong interpersonal skills to build a rapport with the parties involved and ability to be perceived as neutral and fair.
- Attention to detail.
The next step is creating an investigation plan that is effective and properly executed. The investigator will need to include the following elements:
- Outline of the issue, including timeline, evidence and relevant details
- Determined witness list
- Set of interview questions eliciting further details
- Retention of documentation
Interview questions need to be open-ended and designed to gather facts without leading the interviewee. The main questions about the incident will remain the same for the interviewee, regardless of whether they are the complainant, witness or the accused. There will be additional ones depending on the employees’ roles.
Be sure to interview your complainant first, in order to understand the concern. Ask him or her the following questions:
- When did the incident take place?
- Where did it take place?
- How did it make you feel?
- Who was there and what did they see?
- Has this ever happened before? When? Where?
- Who else knows about the incident? What did you say?
- Have you kept any documentation relevant to the incident?
- Does anyone else have similar concerns?
- What other facts are there that may be important?
- Have you told me everything you are concerned about?
Additional witnesses’ questions will focus on what they saw, what they heard, who else was there, if he or she witnessed the incident happen before, if anything was documented, and if the compliant reported the concern to his or her supervisor.
Accuser questions will focus on what happened on a specific day and time, how they reacted, and if there were any similar complaints brought up previously by the complainant.
If the incident deals with sexual harassment and discrimination, investigators are recommended to consult The Equal Employment Opportunity Commission (EEOC) for more specific interview questions.
Conduct your interviews in a way that makes the employee feel more comfortable and open to a discussion. This can be done in a more casual manner face to face in a closed office, instead of a conference room or behind a desk. If you’re interviewing a witness, inform them that they aren’t in any trouble and inform them about the topic in question, without revealing irrelevant information or leading the witness. During the interview, remember the following elements:
- Provide as little prior notice as possible to avoid employees calibrating their version of events.
- Take notes and show the interviewee the notes you’ve taken in order to avoid any inconsistencies in what you wrote and what they said.
- Note any additional witnesses that may be revealed during your discussion and include them in your investigation.
- Bring up the issue in question, revealing only necessary information. You may take the more generalized approach – For example you can ask “Have you heard any inappropriate comments/seen any inappropriate behavior in your work area?” Or a more direct approach, such as, “Yesterday morning, in the breakroom, did you observe the confrontation between X and Y? What were the specific words that X said to Y?” Either option is correct, but one or the other may work with different employees.
- When interviewing the accused, it’s important to tell them the details of any allegation so they can defend themselves. Assure him or her that you are looking for the truth and the facts so that the complaint can be resolved fairly for all parties involved and that the conversation will be kept as confidential as possible.
- Be sure to remind all employees that false or incomplete information will be subject to disciplinary action.
- Remind employees that retaliation against those who participate in an investigation is prohibited.
Once all interviews have been completed, collect evidence and tackle any credibility issues, if present. The investigator will need to analyze the data for common themes and facts and create a formal recommendation for management and legal counsel. The final decision/determination should be made by senior management.
Notify the complainant about the decision once it’s determined. Let the complainant know that the organization took the complaint seriously and took what was determined to be appropriate action. Be sure to check with the employee on whether or not they felt heard and understood, regardless of the results. The investigator should follow up with the employee to see if there are any other issues in the future. Remind the employee to continue the results confidential.
When the organization takes corrective action that is appropriate to the situation, such as discipline or even termination, the employer should:
- Determine if education, such as sexual harassment training or anger management training, would be beneficial to the individual or all employees.
- Consider if the need exists to review, modify or redistribute workplace policies.
- Determine whether a review of the investigation and complaint resolution processes is necessary.
Keep a well-documented summary of the investigation plan and results in case of a potential legal court case down the road. Be sure to include the following:
- Dates and details of the complaint or issue
- All parties involved
- Employee policies relevant to the issue
- Clear record of the detailed investigation plan
- Any findings at different levels of the investigation
- Parties responsible for final determination
- Unresolved issues
- Employer action taken