A safe, productive workplace is one in which issues are dealt with in a swift, fair, and consistent manner. One of the primary tools for accomplishing this goal is a credible, thoughtful process to identify, analyze, and address issues: the workplace investigation.

Although no two investigations are identical, there are certain characteristics of an effective workplace investigation. This article highlights five such elements, including: a solid plan, a competent investigator, a thorough analysis of the facts, a thoughtful analysis of credibility, and a final report, written or otherwise.

I. Developing a Plan

The cornerstone of any investigation is a plan. A solid investigation plan incorporates most, if not all, of the following basic elements.

• Scope. Define the investigation’s scope at the outset that reflects a clear understanding of the issues and allegations. A clearly defined scope helps to manage expectations and ensures that the investigatory process stays on course. That said, as the investigation proceeds, occasions do arise in which the scope may expand or contract or change course completely.

• Research and include any applicable policies, handbooks, codes of conduct, and company practices. Reviewing relevant personnel files may also be instructive, particularly if there is a history of similar conduct, complaints, or other information that may be germane.

• Witness list. Identify individuals to interview and understand the purpose each witness may serve and/or offer in the course of the investigation. In advance of meeting with a witness, outline the issues to discuss. Also, consider the order for interviewing witnesses as it can assist the overall quality of the fact-finding process.

• Documents and related materials. Most investigations involve documents. A good investigation plan will identify relevant documents, and, to the extent relevant materials are not available, give due consideration to which, if any, witnesses may assist with the identification and acquisition of such materials.

• Other resources as needed. Most workplace investigations do not occur without assistance. Consider who will be scheduling the interviewees, where the interviews will take place, and what the interviewees will be told when they are advised that they will be participating in an investigation.

• Timeframe. A plan should include a realistic timeline for each stage of the investigation and anticipated completion.

II. Identify the Investigator

The investigator can have a tremendous impact on the outcome of the investigation. Employers should only use trained investigators with extensive experience conducting workplace investigations. The investigator should be objectively impartial and subjectively perceived as impartial by the participants.

While the investigator can, in certain circumstances, be internal to the organization; however, retained outside counsel, with sufficient skills, experience, and time to conduct the investigation often provides the best chance for an impartial, objective investigation. Deciding whether to use an internal employee versus outside counsel is often based on the complexity of issues and who is implicated by the investigation. If the investigation concerns performance issues or minor concerns about employee relations, an in-house investigator is likely appropriate. However, when allegations concern potential violations of state or federal law, such as discriminatory behavior, harassment, or a hostile work environment, outside counsel may be more appropriate. Additionally, the higher the position of the individual within the organization who is alleged to have engaged in misconduct, the greater the need to hire outside counsel to lead the investigation.

Other factors to consider when choosing an investigator include:

• Being directly or indirectly involved with the complaint;
• A close friend of or in a subordinate position to the complainant or the accused;
• An effective witness in future administrative or legal proceedings;
• Knowledgeable of company policies and internal procedures; or
• Involved in any prior negative incidents that could undermine the process.

III. Techniques for Determining Witness Credibility

Workplace investigations often rely on conflicting testimonies and require the investigator to draw conclusions based on perceived credibility of witnesses. Failure to accurately assess credibility can render an investigation useless at best and, at worst, compound an already difficult situation. When assessing credibility, the investigator should consider:

• Whether the witness has a motive to not be truthful or withhold information?
• Is the witness providing information that goes against their own interests?
• Does the witness have a history of being truthful?
• Is the witness playing games with words?
• Have similar concerns been raised about the witness in the past?
• Does the witness’ version of events make common or logical sense or seem plausible?
• Have the witness' statements been reasonably consistent?

Corroborating evidence also plays a significant role in determining witness credibility. Statements from others who have knowledge of the underlying incidents, e-mails, text messages, social media posts, and surveillance footage should all be considered.

IV. Some Legal Considerations

When an employer institutes a workplace investigation, the focus must always be broader than simply: “what happened.” An investigator, acting on behalf of the employer, should also be mindful of the employer’s duties and responsibilities such as:

• Statutory duty to investigate: Does the employer have a duty to investigate under state or federal anti-discrimination laws?
• Privacy rights: Who is entitled to what information? Employers must know their duties with respect to handling personnel records, health records, and other protected documents.
• Attorney-Client Privilege/Attorney Work Product: Not all communications in a workplace investigation are privileged. Employers should have a clear understanding of what is/not protected.
• Employee Rights: Consider whether any labor laws or a collective bargaining agreement might provide employees with rights in an investigation.

V. Creating the Investigative Report: Legal Best Practices

A report of findings should be produced at the end of most investigations. Prior to preparing a report, the investigator should inquire if the employer prefers a written report or an oral report. The investigative report should include factual and legal conclusions only if specifically requested. The investigative report should state whether the alleged misconduct was substantiated, unsubstantiated, or that the findings were inconclusive, and, if substantiated, the investigative report should cite the employer policies violated and any harm suffered as a result.

The investigative report should also include the scope of the investigation, the investigation timeline, and important dates. The analysis should include a summary of the allegations, relevant documents, and the facts that support or refute the allegations, with a clear reference to any germane workplace rules or policies. The report should also include a section that provides a clear statement of the findings of the investigation on each key issue, including any issues that were not resolved.

Whether the investigative report provides recommendations for disciplinary actions, employee compensation, or other action is a decision to be made by the employer when discussing the scope of the process. If legal conclusions are requested of counsel, they should be provided under a separate document from findings to ensure protection of legal opinions.

VI. Conclusion

A workplace investigation, at its core, is a fact-finding endeavor that should be thoughtfully planned and carefully executed. Just as a well-executed investigation can be of great value to an employer in resolving concerns, a poorly managed investigation can be detrimental. Because every investigation presents unique challenges, and the outcomes can have a significant impact on the workplace, the need for the proper handling of a workplace investigation should be given due consideration each time an allegation of workplace misconduct arises.