Decisions by the Supreme Court provide compelling reasons for employers to perform investigations.  A good investigation can protect your organization, while a bad one can become an employee relations fiasco.  If you follow the proper process, your investigations should result in the “right” decisions.

At some point, every manager or HR professional will face a situation that requires investigation before any employment action can be taken.  Typically, the investigation will be necessary to respond to complaints or suspicions of workplace misconduct, rule or policy violations, or even criminal acts.  Many HR professionals, however, feel unprepared to perform these investigations because they do not have a process for conducting investigations and for making decisions based on the results.  Performed systematically, investigations can prevent potential morale problems, resolve efficiency problems, and prevent legal and financial losses.  In short, a good investigation can help you make sound employment decisions.  However, poorly conducted internal investigations often result in low morale, negative public relations, and litigation.  Therefore, you should have a well-defined process to specify the circumstances in which you will conduct investigations and to help you make confident, fair decisions.

When Do Investigations Make Sense?

The first issues to consider are why and when you should conduct an investigation.  Some situations, such as allegations of sexual harassment, clearly warrant an investigation.  Moreover, the Supreme Court’s rulings have reinforced this responsibility of employers.  In Burlington Industries v. Ellerth, 524 U.S. 775 (1998) and Faragher v. City of Boca Raton, 524 U.S. 742 (1998), the Court found that employers have a duty both to prevent sexual harassment and to respond to and investigate any complaints.  Therefore, employers that do not conduct thorough investigations could be liable for harassment. 

Even when there is no clear legal requirement for an investigation, investigations make sense whenever there are complaints of workplace problems, including rule or policy violations (such as violating the safety policy), misconduct (such as insubordination), or criminal acts (such as stealing).  Management also should be prepared to initiate investigations, even without a formal complaint, when there are rumors or suspicions of rule violations or wrongdoing.  

The consequences of not performing an adequate investigation can be severe.  Many employees file lawsuits alleging discrimination, harassment, or wrongful termination as the result of decisions based on inadequate investigations.  In fact, both the complaining party and the accused wrongdoer may sue if an investigation was conducted in a shoddy manner or if a decision appears to be unfounded.  Significantly, courts tend to punish employers that do not conduct thorough investigations.  In addition, employee morale may suffer if employment decisions appear unfair or arbitrary because investigations are not thorough or objective.  Most employees value fairness and will respect their employers’ decisions if they are based on a structured investigative process.  

The Investigative Process

One way to keep the goals of an investigative process in focus is to visualize how your organization’s procedures and decisions might be viewed in an outside forum, such as a local newspaper or court.  You should be confident that your investigative process and decision would be considered fair if held up to public scrutiny. 

These five elements should be part of every investigative process:

1.  A Written Policy.  This policy is management’s opportunity to explain the investigative process and its purpose.  Generally, the purpose of an investigation is to discover the facts necessary to make a decision about a particular employment issue.  A written policy also tells employees what to expect from the process and emphasizes its fairness and objectiveness. The policy should outline steps for initiating the process, the actual investigation (including fact finding and interviewing witnesses), proper documentation, the final decision, and the communication of the results (see “Making and Communicating Decisions,” below).  The policy does not have to be a separate one.  Rather, most employers incorporate an investigatory procedure into their policy on the handling of complaints, disputes, or grievances.

2.  A Trained and Objective Investigator.  The qualifications and demeanor of the person conducting the investigation will have a major influence on everyone’s perception of fairness.  Ideally, the person should be specially trained and experienced in human relations, employment law, and conflict resolution.  Many employers use their internal HR professionals in this role.  However, if a person with these qualifications is not available internally, you should use an outside expert.  Likewise, an outside investigator may be appropriate if the investigation is particularly sensitive or legally complex.

3.  Timely Process.  A commitment to complete the investigation in a timely manner reinforces the perception of fairness.  Therefore, investigations should be completed as soon as possible after a complaint is filed, the misconduct is observed, or the alleged incident occurs.  Normally, no more than a few days should elapse between steps in the process; and ideally, the investigation should be completed within five to ten days.  Some investigations, such as those involving complicated issues like harassment or theft, may take longer.  In those cases, management can extend the time needed by placing the appropriate parties on special leave pending an outcome. 

4.  Careful Fact Finding.  The investigator should begin by gathering as many facts as possible about the problem, either by interviewing the complaining party, or if no one made a complaint, by interviewing people who may be involved or who may have witnessed the problem.  As a general rule, you should talk to any person who may have information that would either prove or disprove that the alleged conduct occurred.  Questions should be probing and open-ended and, to preserve confidentiality, should focus only on the details that particular person should know.  In addition, the tone of each interview should be professional, and everyone interviewed should know the organization will not retaliate against anyone who participates in the investigation.  Throughout the process, the investigator should be as impartial as possible and not comment on any aspect of the investigation. 

5.  Documented Results.  All steps in the process should be recorded and documented in writing.  Written records, properly compiled, help everyone’s memory and can be invaluable in demonstrating and supporting the fairness of the investigation and decisionmaking process, both to employees and, if necessary, in court.   

Making and Communicating Decisions

Once the investigation is completed, you should evaluate the evidence and decide whether it appears likely that the alleged misconduct or violation of policy occurred and what action should be taken.  In making a final determination, you should point to as many facts as possible to support the decision and document each reason for the decision.  If there is no corroborating evidence (for example, if you are faced with two people telling conflicting stories), you still may make a decision based on the credibility of the parties involved.  For example, contradictory statements by one person, or changes in another’s story, may make a conclusion possible.  

However, there may be times when the evidence is inconclusive and you cannot reach a determination.   In these cases, you should not take action against either party.  Placing blame where the truth cannot be determined may result in claims of wrongful discharge, defamation, infliction of emotional distress, or retaliation.  Instead, you should explain to the parties why the evidence was inconclusive and give anyone involved the opportunity to submit additional information and appeal the decision.  An appeals step lends additional fairness and impartiality.

Most managers and HR professionals are concerned about making the “perfect” decision.  However, neither your employees nor the courts expect the decision to be perfect.  Rather, they require the decision to be fair and based on a thorough investigation.  This point is illustrated by the tendency of the courts not to second-guess employer actions, even when later proven wrong, if management acted fairly and in good faith in making the decision.  In other words, management decisions are not normally held to the strict rules of criminal court proceedings; you do not have to have evidence beyond “a reasonable doubt” in order to take action.

The last step in the process is the communication of the decision to the appropriate parties.  The decision should be disseminated on a “need to know” basis to prevent claims that statements or comments about the investigation are defamatory.  This communication also gives you the chance to underscore the fairness of the process and the reasonableness of the decision.

Fairness and “How it Looks”

 Although internal investigations can be difficult and time-consuming, they should help ensure that your disciplinary decisions are based on fact and are perceived as being fair.  Focusing on “how it will look” to outsiders will lead to a process that serves everyone’s interests well.  Your employees, outside observers, and even the courts tend to value the fairness of your dealings more highly than your being technically or legally “right.”  Therefore, you always need to show that your investigation process was followed in good faith to reach a fair decision based on what was known at the time.