Internal workplace investigations are often necessary to discover, address and prevent workplace problems, and they are an important tool for responding to complaints or incidents of suspected workplace misconduct.  These investigations can help improve employee morale, increase productivity, and end inappropriate conduct by other employees.

Additionally, internal investigations are crucial to an employer’s ability to avoiding litigation, or—if a lawsuit follows—preparing a comprehensive defense.  Promptly responding to employees’ concerns about their work environment is often the best way to avoid litigation altogether, as employees who feel their employers have heard and addressed their complaints are typically less likely to seek redress in court.

Despite all of the benefits of internal investigations, however, ineffectively conducted investigations can both exacerbate the underlying problem being investigated and create independent grounds for liability.

Here are the top ten best practices for conducting effective investigations.

DO –

  • Make a plan: Identify what issues you are trying to resolve, what documents to review, and who to interview.  Consider it in phases: fact-finding, conclusion drawing, and response (including potential discipline).
  • Review company policy: Determine which policies are applicable to the complaint.
  • Keep it confidential: Remind involved parties of their obligations, which include confidentiality, non-retaliation, and the need for truthfulness and candor.
  • Explain the process: Use simple language to communicate the process and purpose of the investigation to the complainant and witnesses.
  • Be courteous: Be professional and courteous toward all witnesses, including the complainant and the accused.
  • Trust your instincts: When making credibility assessments, if something doesn’t sound logical or make sense, make a note of it.
  • Explain retaliation issues: Use simple, non-legal terms to explain retaliation and why such conduct is prohibited.  Report any retaliatory conduct immediately.
  • Get all the information: Ask the witness to identify corroborating evidence or other documents and knowledgeable witnesses.  Re-interview a witness is necessary to address newly-disclosed information.
  • Document carefully: Take detailed notes, but remain mindful of attorney-client privilege issues.
  • Follow up: Circle back with the individuals involved a few weeks after an investigation to ensure that the offending behavior has stopped, that no retaliation has occurred, and to ensure that the remediation has been successful.

DON’T –

  • Don’t delay, but don’t rush: Initiate the investigation promptly, and use your plan. Take it step by step. Do not rush witnesses during interviews; you will get better information.
  • Don’t promise confidentiality: You can assure the involved parties that you will treat all information with sensitivity, but you may need to disclose the information down the road during a lawsuit.  Don’t make promises you can’t keep.
  • Don’t make assumptions: Remain as impartial as possible and avoid rushing to judgment.  Make sure you choose an investigator who can do this.
  • Don’t diss the union: Inform your unionized employees that they have the right to have a union representative present during interviews.  But don’t let the union representative disrupt the interview or answer for the witness.
  • Don’t lose your cool: Be even-tempered, and avoid becoming angry, judgmental or emotional during interviews.
  • Don’t lose control: Take ownership over your investigation, and be thorough in keeping to your plan and task list.
  • Don’t get too legal-y: Avoid legal jargon, and do not communicate legal conclusions during interviews.
  • Don’t forget to report: Create a close-out report that includes the allegation, applicable policies, parties interviewed, evidence reviewed, facts identified, conclusions, and actions taken.
  • Don’t delay in reporting: Promptly inform management, in-house counsel, and other employees who need to know the outcome of the investigation.
  • Don’t fail to follow-up: Monitor for ongoing problems post-investigation, and confirm that the offending behavior has ceased.  

This list is of course not exhaustive, and you should seek the assistance of legal counsel to ensure that your company is doing everything it can to minimize the risk of litigation and maximize employee satisfaction with internal dispute or complaint policies.