In the first part of this three-part series—Be A Super Sleuth: Laying the Framework for Effective Workplace Investigations—we provided a number of pre-investigation considerations for employers, including an overview of policies for companies to consider implementing and tips for maintaining a workplace culture that encourages the reporting of complaints. In the second part of the series—Be a Super Sleuth—Part Two: Preparing for and Conducting Effective Workplace Investigations—we provided you with the nuts and bolts of how to prepare for and conduct an effective workplace investigation. Now, in the final part of this series, we hope to provide you a number of items to consider as you wrap up and conclude your investigation.
Although we have emphasized the importance of how to conduct an effective workplace investigation, it is equally important that a company remember to conclude an investigation in a prompt and appropriate manner (without sacrificing thoroughness). This may sometimes mean that remedial or corrective action need be taken. Other times an investigation is inconclusive and no further action is warranted. Regardless, it is imperative that a company consider the information it obtained during the course of the investigation and determine an appropriate, reasoned course of action in light of what was learned.
Part 1: Reviewing Relevant Information and Documenting the Investigation
We previously stressed how important it is that an investigator be familiar with relevant company policies. In part 1 of the series, we recommended that an investigator’s pre-investigation preparation should include a review of all relevant company policies. Even if the investigator thinks he or she remembers the relevant company policies, it is a good practice to conduct another review of the policies relevant to the issues involved at the conclusion of the investigation. This will help the investigator as he or she evaluates all of the results of the investigation and decides what to recommend or “find.”
After analyzing the policies and the facts gathered during the investigation, and after reaching a conclusion as to what happened, the investigator may decide or be asked to prepare a report (verbal or written) to the manager or other individual who will be making the decision (it is generally not advisable to have the decisionmaker conduct the investigation). In preparing a report, the investigator should weigh all of the evidence, including the credibility of the witnesses. The investigator should consider key witnesses’ motives, potential biases, and work records—while being cautious not to carelessly make faulty assumptions.
In formulating a report (verbal or written), the investigator should consider the following:
Did some form of wrongdoing or harassment occur?
If so, would you consider the violation to constitute a serious offense?
What has the employer done in the past with regard to similar violations?
Are there any federal, state, or local harassment or other laws that require you to take certain actions in this case?
How long has the employee who violated the policy been employed at the company?
Has the employee ever violated any similar company policies in the past?
What is the employee’s performance history at the company?
Are there any other circumstances that could affect the report, i.e., any “mitigating” circumstances?
It is certainly recommended that the employer document the investigation as well as any conclusions reached and the results of the investigation. It is, however, important to note that any written document prepared during the course of an investigation may become one of the primary exhibits in any litigation that may be filed by the complainant, the accused, a third-party witness, a supervisor, or even an outsider. Therefore, be careful what you write. It may not be advisable to provide a recommendation—at least not in writing—because if it is not followed, the ultimate decision is easily attacked.
In documenting the investigation, it is critical that the investigator be mindful of the terms he or she uses. Avoid stating conclusions that include terms such as “harassment,” “discrimination,” or “wrongdoing.” Instead, terms such as “inappropriate,” “unprofessional,” or “policy violation” should be used. For example, it could be very difficult for the employer’s attorney to argue that certain misconduct did not constitute harassment when the employer’s investigator documented his or her conclusion that the conduct constituted harassment. If the report is being sent directly to an attorney or is being prepared at the request of an attorney, the investigator should place in prominent letters at the top of each page the phrase “Attorney-Client Privileged” or “Prepared at the Request of Counsel.”
Before finalizing any report, and to assist in ensuring that an objective eye would agree with the decision about to be made by the employer, it may be advisable to request that a knowledgeable Human Resources (HR) professional or respected executive not involved with the investigation review the documentation and final report.
Part 2: Taking Prompt, Appropriate Corrective Action
To the extent the investigation reveals conduct that violates company policy or is otherwise inappropriate, prompt, appropriate corrective action must be taken. In taking action, the employer must be mindful of adhering to its own policies and treating similar cases in a similar manner. If the employer has established disciplinary guidelines, they should be used. Deviation from standard operating procedures may prompt additional claims by either the complainant or the accused. Such deviations may also be difficult to explain to administrative agencies, judges, or juries.
If the employer concludes that the complainant and the accused should be separated, it is not advisable to transfer the complainant unless the transfer will be to a more desirable position or shift, or unless the complainant requests that he or she be transferred. Transferring the complainant to a less desirable location or position may be deemed a retaliatory action.
If the decision is made to impose discipline, a determination must be made as to the amount of discipline that is warranted. It is important to try to “make the shoe fit.” That is, the discipline should be proportional to the offense. You may, of course, consider a variety of options, including but not limited to: no action; education of an individual, work group, etc.; verbal discussion/counseling; written warning; suspension; corrective action plan; demotion; transfer; reduction in salary; and termination. The employer should also consider training or retraining and follow-up education on company policies and appropriate workplace conduct.
Part 3: Following Up and Communicating the Outcome of the Investigation
After the investigation has been concluded and the corrective action, if any, has been implemented, the decisionmaker or HR representative should follow up with either or both parties, as appropriate. This follow-up may be as informal as visiting the complainant and asking how he or she is doing or as formal as a scheduled meeting. The determination of which is appropriate must be made on a case-by-case basis. Without regard to the approach used, however, the employer should document the follow-up. Although employers differ on whether to include the investigation file in an employee’s personnel file, employers should, at the least, make a notation of the investigation in the complainant’s and the accused’s personnel files. If nothing else, that notation will refer anyone reviewing the personnel file to the separate investigation file.
Inform the complainant of the results of the investigation (i.e., advise the complainant which allegations could be substantiated and which allegations could not be substantiated and/or were contradicted). Inform the complainant that, based on preliminary results of investigation, either (1) appropriate disciplinary action will be taken; or (2) no disciplinary action is warranted. Assure the complainant that if disciplinary action is to be taken, the company believes that it is sufficient to stop any unwanted behavior. Inform the complainant that if, at a later date, additional information is obtained or provided that contradicts the preliminary results, the matter will be investigated further. Moreover, remind the complainant that he or she should immediately notify a designated company representative if he or she has any additional similar complaints in the future, so that the company can take appropriate action. Finally, encourage the complainant to come forward immediately with any concerns of retaliation.
The employer should similarly disclose preliminary results of the investigation to the accused and invite the accused to provide additional witnesses or documents that would be relevant to the outcome of the investigation. If additional witnesses/documents are provided, investigate further. At the conclusion of the investigation, advise the accused of the company’s conclusion and what action will be taken: no action, if inappropriate conduct was not substantiated (if possible, do consider ways to separate and/or limit future contact between the parties); training on harassment and the need for compliance with company policy; verbal or written warning; suspension; demotion; reassignment; or termination.
It is not appropriate, in most cases, to inform other employees of the results of an investigation. An employee who has been interviewed regarding events involved in an investigation may ask about the final results. Explain to the employee that this information is confidential, his or her assistance was appreciated, and it is not the practice to discuss confidential information regarding one employee with another.
There may, of course, be times when an investigation is inconclusive. This typically happens when an employee’s complaint about workplace misconduct occurs in a one-on-one environment and the accused denies the allegation. Where the investigation proves to be inconclusive, the employer should inform both the complainant and the accused that no conclusion could be reached. Both the accused and the complainant should, however, be reminded of applicable policies, including discipline for inappropriate behavior or action and the reporting mechanism. Inform the complainant and the accused that a confidential record of the allegation and investigation has been made and will be retained by the human resources department. Employers should be prepared for dissatisfaction on the complainant’s part and remain sympathetic, but strong, in not disciplining an accused without good evidence.
In the end, a good workplace investigation will identify issues and address problems before they get out of control. Even if the dissatisfied complainant or accused later brings the same issues to an outside third party, the employer that has conducted a thorough investigation, documented the results of that investigation, and taken appropriate action will be in a better position to avoid or minimize liability.