Workplace Investigations: Best Practices for Investigating Internal Complaints

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Responding properly to reports of illegal or criminal activity, unlawful discrimination, harassment and retaliation, and other workplace complaints often requires employers to conduct internal investigations. The nature and seriousness of a complaint or the concerns raised will determine whether an informal resolution or a formal investigation is appropriate.

Workplace investigations provide critical benefits by ensuring legal compliance, mitigating litigation risks, and maintaining a safe, productive culture. Investigations allow employers to objectively address misconduct, such as harassment or discrimination, prevent the escalation of disputes, mitigate loss and costly remedial measures associated with litigation or illegal or criminal activity, such as fraud, as well as demonstrate a commitment to fairness, which strengthens employee trust and protects an employer’s reputation.

This article outlines steps and best practices for employers to consider when conducting effective workplace investigations.

1. Identity the Investigator or Investigation Team: At the outset of any investigation, it is important to identify the investigator or investigation team, such as Human Resources, a Compliance Officer or department, in-house or outside legal counsel as well as others, such as forensic auditors. In identifying an appropriate investigator or investigation team, it is important to consider: (1) independence and impartiality of the investigator or investigation team, (2) subject matter expertise of the investigator or investigation team, and (3) potential exposure to liability, including criminal liability, and the need for legal advice and preserving the attorney-client and work product privilege.
2. Define the scope of an investigation in Writing: A scope, which clearly identifies the objectives of the investigation, will ensure all pertinent concerns and allegations are thoroughly examined as well as prevent the investigation from becoming an unfocused fishing expedition, which can waste an employer’s resources, time and money.
3. Create an Investigation Plan: An effective investigation plan should identify the investigation scope, efforts to preserve potential evidence, a list of relevant documents and evidence for review, potential witnesses, as well as next steps. The investigation plan is not necessarily a static document and can be updated throughout the investigation process. If necessary, such as in situations where there are significant reputational risks or particularly sensitive allegations, the investigation plan can also include or reference a communication plan. A communication plan allows companies to appropriately respond to internal and external inquiries.
4. Preserve Evidence: An employer should ensure that all potentially relevant evidence is preserved, providing evidence preservation notices to witnesses and others involved in the investigation, where necessary. Employers may also wish to consider putting in place a more formal litigation hold notice, especially in situations where there is a risk of litigation.
5. Confidentiality/Retaliation Reminders: Management and/or the investigator(s) should explain to all individuals involved in an investigation, including the complaining party and any witnesses, that the investigation and information gathered will remain confidential to the extent possible and any information related to the investigation will be shared on a “need to know basis.” No one should ever promise absolute confidentiality to any party or witness involved in the investigation. In addition to confidentiality, employees should also be reminded of an employer’s retaliation policies.
6. Records-Based Fact Gathering: Investigators should identify the relevant records for review, which could include, but is not limited to, anything from reports, witness statements, emails, texts or other communications, calendars, client files, video camera footage, or even recorded customer calls. Relevant documents and records can provide important context for an investigation and can be used to create a timeline.
7. Witness Interviews: When conducting witness interviews, there are certain steps that employers may wish to consider:
1. Review Relevant Documents and Create an Outline: Notably, before conducting witness interviews, an investigator or the investigation team should review the relevant documents as well as consider creating an interview outline, which identifies specific questions or topics the investigator or investigation team wishes to cover with the witness.
2. Conduct Scoping Interviews, Where Appropriate: Investigators may want to consider the benefits of conducting scoping interviews, which are aimed at gathering information about relevant employer procedures and practices. Scoping interviews generally involve interviews of individuals who are familiar with relevant employer procedures and practices as opposed to necessarily being involved in or the subject of the complaint or allegations.
3. Explain the Process: At the outset of a witness interview, investigators should explain the process, providing reminders about confidentiality and retaliation, as well as an employee’s obligation to cooperate in workplace investigations (which is ideally already documented in company policies and procedures).
4. Asking Questions: Interviewers should try to ask open-ended questions to elicit more detailed, narrative responses as opposed to “yes/no” answers and should not offer any opinions or conclusions during the interview, including as it pertains to the employee’s employment with the company.
5. Take Clear Notes: During the interview, it is important to take clear notes, which document the names of those present, the date and time of the interview, as well as who is speaking.  
8. Investigation Reports: At the end of an investigation, especially where a formal resolution is necessary, the investigator or the investigation team should consider drafting an investigation report. An effective investigation report often summarizes the facts, including facts impacting credibility, details the investigation process, including the relevant documents reviewed and interviews conducted, identifies relevant employer policies or guidelines as well as relevant laws and regulations, if applicable, and documents any conclusions and recommendations (if within the scope of the investigation).
9. Conclude the Investigation: After an investigation report is finalized or the investigation has ended, a meeting with the necessary individuals should be held in order to come to a conclusion. As part of concluding the investigation, the appropriate individual(s), whether that is the investigator(s) or someone else, such as management or the board, must determine whether any necessary corrective or disciplinary actions are required.

Our Maynard Nexsen team stands ready to assist employers in conducting or assisting with workplace investigations. Please contact us for additional information or guidance.