Introduction

From a human resources (HR) perspective, the workplace is full of landmines. From combatting sexual harassment allegations to providing reasonable accommodations for people with disabilities, employers have their work cut out for them when it comes to compliance with employment laws. The question isn’t whether an employment issue will ever arise, but whether a corporation’s HR department will be prepared to investigate issues when they inevitably arise.

An estimated 25% of all class action lawsuits are claims involving class-based employment issues. 

The last thing a corporation wants is to face an enforcement action or a private lawsuit. By conducting effective HR investigations as soon as employee complaints and incidents arise, employers can get ahead of potential violations and save money in the long run.

In this post, we’ll look at what an HR investigation is and explore scenarios where such an investigation may be necessary. We’ll then discuss the five stages of an HR investigation and look at how long they typically take and what rights employees have throughout the process. Finally, we’ll share three best practices for conducting efficient workplace investigations and explain how modern technology can help.

Contents:

What is an HR investigation?
Scenarios that can lead to an HR investigation
The 5 stages of an HR investigation
How long does an HR investigation take?
Employees’ rights during an HR investigation
3 best practices for conducting an efficient HR investigation
The right tools will elevate your HR investigation process

What is an HR investigation?

An HR investigation is a formal fact-finding mission aimed at uncovering possible employee misconduct. HR typically launches an investigation after an employee makes a complaint or another triggering event occurs.

Corporate HR teams often need to conduct internal investigations to ensure that their organizations remain in compliance with various laws and regulations. A corporation’s failure to investigate a complaint or incident could lead to increased scrutiny, regulatory enforcement actions, and fines.

But failing to investigate misconduct can have even more insidious effects. If an organization doesn’t conduct prompt and effective investigations, bad actors can get away with persistent wrongdoing—and that can harm employee morale, drive good employees away, damage the corporation’s reputation, and eventually result in costly litigation.

That’s why HR teams must investigate swiftly and effectively when they receive a complaint or learn of an incident that raises legal or ethical questions.

Let’s look at some examples of events that may warrant an HR investigation.

Scenarios that can lead to a workplace investigation

A corporate HR team needs to consider launching an investigation when it becomes aware of conduct that may be unlawful or in violation of internal or company policies or policy. Here are a few of the most common scenarios that could lead to an HR investigation.

·       Discrimination: Employment discrimination occurs when an employee is treated differently based on certain protected characteristics. The EU has enacted several directives that prohibit discrimination in the workplace. These include:

1. The Race Equality Directive (2000/43/EC): This directive prohibits discrimination based on race or ethnic origin in employment, including hiring, promotions, and access to training.

2. The Employment Equality Directive (2000/78/EC): This directive prohibits discrimination based on age, disability, religion or belief, or sexual orientation in employment, including hiring, promotions, and access to training.

3. The Gender Equality Directive (2006/54/EC): This directive prohibits discrimination based on gender in employment, including hiring, promotions, and access to training.

·       Harassment: Harassment is unwelcome conduct that is directed at a person based on their membership in a protected class. Workplace harassment is illegal when an employee must endure it to remain employed or when it creates a hostile work environment.

·       Health and safety: Employers have a legal duty to protect the health and safety of their employees. An investigation may also be necessary when an employee raises health or safety concerns.

·       Mishandling of medical or genetic information: Employers are prohibited from asking about or disclosing certain medical and genetic information under laws such as General Data Protection Regulation (GDPR) & the Employment Equality Directive (2000/78/EC). HR should launch an investigation any time it receives a complaint regarding improper questioning or learns of an event where an employee’s protected information may have been wrongfully acquired or shared.

·       Ethics: Corporate ethical guidelines govern the way employees conduct themselves and decide right from wrong. Many HR violations fall under the category of ethics even when they are not unlawful, such as lying to colleagues or misusing company time. HR should investigate ethical concerns to prevent further wrongdoing and keep a single employee’s misdeeds from turning into a pattern or a more serious legal issue.

·       Retaliation: Retaliation occurs when a supervisor or colleague treats an employee unfairly as punishment for filing a complaint. Various “whistleblower laws” prohibit all kinds of retaliatory activities, including firing, demoting, and failing to promote employees who have reported concerns.

While each HR investigation is different, they all follow the same general structure.

The 5 stages of an HR investigation

While the details and demands of each HR investigation differ, the overall investigation process should remain the same to ensure consistency and accuracy. Here are the five steps involved in an HR investigation.

1.     Assess the complaint or other triggering event.

The first step of an HR investigation is to evaluate the complaint or incident to determine what kinds of issues are involved and whether an investigation is necessary. Sometimes informal processes, such as staging a mediation between two employees or involved parties, can lead to a faster and less contentious resolution. Other times, a formal investigation is warranted.

2.     Plan the investigation.

If an HR investigation is necessary, the investigation team must determine:

·       the scope and purpose of the investigation,

·       what types and sources of evidence will be relevant,

·       who will lead the investigation,

·       who will assist with the investigation (including departments outside of HR, such as IT), and

·       who the investigators will report to after they finish their inquiry.

Having a solid plan in place helps investigators get on the same page, understand what’s expected of them, and avoid getting distracted by extraneous matters.

3.     Gather facts.

The bulk of a workplace investigation occurs in the fact-finding stage. At this time, investigators will review data and interview witnesses, recording any relevant information they discover (witness statements). While interviews must be conducted manually, HR teams can—and should—use technological tools to search and analyze data, especially in cases involving extensive digital records.

4.     Evaluate the claim.

Once investigators have gathered the relevant facts, they must evaluate their findings to reach the final decision. This step of the process includes revisiting the initial complaint or issue of concern and determining whether the relevant evidence supports that claim and whether remedial action is necessary.

5.     Report the results.

In some cases, the lead investigator can relay the results of an investigation verbally. But in most cases, HR teams should write a formal investigation report, to efficiently inform legal counsel on the results of the investigation. The report should include:

·       the full names of everyone involved in the investigation;

·       a summary of the alleged facts;

·       an explanation of the facts that the investigation established and the sources of those facts;

·       any additional facts that decision-makers should take into account, such as mitigating circumstances or open questions; and

·       the investigating team’s recommendations.

Obviously, all of this takes time to complete, but organizations shouldn’t drag their feet. So, how much time is it reasonable to spend on a workplace investigation?

How long does an HR investigation take?

An HR investigation typically takes one to two weeks to complete, but the process can take anywhere from days to months depending on the specific claim and the complexity of the facts and data involved.

For example, a sexual harassment investigation may be resolved by conducting interviews and reviewing emails, both of which can be completed quickly. A fraud investigation, on the other hand, may require investigators to sift through and analyze large volumes of data to understand where, when, and how the fraud occurred and identify the organization’s vulnerabilities—all of which may take much longer.

Regardless of the type of issue at hand, an investigation should start as soon as HR receives a complaint or learns of a potential violation. Why? Because an HR professional must gather information before it is lost, deleted, or hidden and nip developing issues in the bud.

At this point, you may be wondering where the subject of the investigation is in all of this. Let’s turn to employees’ rights.

Employees’ rights during an HR investigation

Because HR investigations are internal corporate matters, employees do not have due process rights. This means that their employer can compel them to participate in the internal investigation and answer questions about the alleged wrongdoing. Employees can refuse to participate, but that refusal may spell the end of their employment.

However, an employee’s employment contract may afford them various rights during a workplace investigation. These rights may include the right to:

·       an attorney,

·       be heard,

·       an impartial decision-maker,

·       inspect evidence that is being used against them,

·       a prompt resolution, and

·       job protection if the accused employee is found innocent of wrongdoing.

If a corporation violates an employee’s contractual rights, it may face legal action and have to pay civil damages. Note that other laws that give employees rights are still in force; a corporation can face civil and even criminal consequences for actions like recording phone calls or interviews without the employee’s consent.

A corporate HR professional can strike the delicate balance between honoring employees’ rights and performing a thorough and speedy HR investigation by following a few best practices.

3 best practices for conducting an efficient HR investigation

Workplace investigations can be time-intensive and costly, but there are several ways to improve investigation workflows and reduce the burden on human resources department, and others.

1.     Define the scope and purpose of the investigation carefully.

Defining the scope and purpose of the investigation is the first stage of the process, and it’s a vital step. An HR investigation must be broad enough to address the issues at play, but it can spiral out of control if its scope and purpose aren’t construed narrowly enough to limit the information under consideration. Lead investigators should be specific about what is at issue and what they wish to accomplish and shelve unrelated legal issues for separate consideration.

2.     Divide and conquer.

Another important part of managing HR investigations is delegating. HR teams can finish their inquiry faster if investigators divide their task list. One investigator can prepare questions and conduct interviews while another is working with IT to gain access to other employees'’ emails and a third is reviewing financial records.

3.     Leverage the right tools.

No matter how many people an HR department can devote to an investigation, the fact remains that most organizations have too much data to sift through manually. By investing in the right tools, HR teams can find what they’re looking for faster without the risk of missing important evidence. Depending on your department's needs, you might want to look into: interview recording software (to ensure that all relevant information is captured accurately); background check software (to conduct thorough background checks on employees or other parties involved in the investigation and uncover relevant information that may not have been disclosed during the investigation), and - of course - eDiscovery software (to simplify the collection; processing; and review of electronic data; which can be especially useful in investigations involving allegations of misconduct that may be documented in electronic communications).

[View source.]