When looking at any process, there are often things to consider before step one, and HR investigations are no different. Here are three best practices your investigations team should follow once a triggering event has taken place but before the investigation has begun.
1. Analyze the Complaint and Look at the Big Picture
Once the triggering event has occurred, HR investigators need to understand the seriousness of the accusations and take appropriate next steps. Not all HR complaints are the same, so taking a moment to evaluate the situation will lead to a quicker resolution in the long run.
When an employee makes a complaint to HR—either formally or informally—that complaint should be assessed as soon as possible. By acting right away, the employer can reduce the risk of potential liability and better protect its employees. Beyond that, certain employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Occupational Safety and Health Act (OSHA), require employers to investigate complaints within a specified timeframe.
At this stage, the focus should be on high-level issues, such as:
- the nature of the complaint (for example, whether the employee is alleging discrimination, harassment, retaliation, or some other problem)
- the names, titles, and physical working locations of the employees affected by the complaint, including those directly implicated, their supervisors, and any potential witnesses
- whether the alleged conflict reflects an isolated incident or concerns an issue that is widespread or ongoing
- whether the employer has any existing policies that might apply to the alleged conflict or any applicable complaint procedures
- whether there is an immediate need to involve legal counsel or other advisers.
By thinking through these preliminary questions, the HR team will be able to estimate the amount of time, resources, and energy the investigation will require.
The individuals tasked with reviewing the complaint and making decisions related to the investigation must keep in mind that any complaint could potentially lead to a regulatory agency investigation or even a lawsuit. This mindset can help ensure that the investigation is carried out in a forensically sound and defensible manner.
2. Determine Whether Immediate Protective Measures Are Necessary, But Tread Lightly
Once the HR team has evaluated the big picture, it should consider whether the organization should implement any protective measures during the pendency of the investigation.
Some types of complaints necessitate immediate action. For example, if an employee alleges that they are routinely being harassed by another employee, the HR team must determine how to separate those employees at least temporarily. This might mean changing employees’ schedules or physical work locations. Sometimes, it might be necessary to temporarily suspend an employee or place them on a leave of absence.
However, the HR team should tread lightly when taking these kinds of protective measures. Before imposing any disciplinary action, such as suspending or terminating the accused employee, the organization needs to have some supporting evidence to justify that decision.
On the other hand, even well-intentioned measures—for example, moving an alleged victim away from an alleged harasser and to a safer work location—could be considered retaliation against the complaining employee if they do not agree to the transfer.
3. Decide Who Will Investigate
The next step is to select who will be responsible for investigating the complaint. Organizations often choose HR staff to handle investigations, but other options might be more appropriate under certain circumstances. For example, a company might choose to assign the investigation to:
- in-house legal counsel
- outside counsel
- a third-party investigator
- a combination of these, resulting in a multidisciplinary investigation team
There’s more to account for in selecting an investigator than just the individual’s role or job title. It is equally important to choose an investigator who possesses the appropriate training, skills, and temperament to investigate a potentially sensitive matter. The investigator should have not only prior experience with similar matters but also an approachable and empathetic personality that will aid in building rapport with employees and eliciting the truth.
Above all, an investigator must also be entirely impartial, with no stake in the outcome of the investigation. This means that the investigator must not have any personal relationship with any of the parties involved. The investigator must be equipped to conduct the entire process in a fair and neutral manner as well as trustworthy and discerning enough to handle confidential matters.
Generally speaking, HR professionals tend to have the necessary people skills, specialized training, and experience to handle investigations. On the other hand, they might have close relationships with the involved parties in some instances. Employees could also hesitate to speak candidly with HR employees because they view them as partial to the company or its managers.
Similarly, the decision to bring in a law firm or a third-party investigator comes with certain benefits and drawbacks. While these external professionals are likely highly experienced and knowledgeable about workplace investigations and employment laws, their lack of familiarity with the organization’s structure could impede their understanding of a dispute. However, if a matter is likely to lead to litigation, external counsel may be a wise choice to ensure that the investigation report is shielded by attorney-client privilege and not viewed as a document produced in the ordinary course of business.