HR Investigations tend to happen quickly, with the triggering event setting things into motion and demanding some kind of response almost immediately. There is also a desire to resolve the issue in short order. However, when things are moving this fast, errors can arise. This is why having repeatable processes in place is of key importance.
With that in mind, here are 4 best practices for conducting an HR Investigation:
Develop an Investigation Plan
The seriousness, complexity, and potentially delicate nature of internal investigations demand careful planning and organization. “Winging it” or taking an ad hoc approach to an investigation is not a viable approach. Therefore, once an investigator has been assigned to a matter, they must create a plan for each facet of the investigation.
That plan should begin with an information-gathering stage that encompasses all potentially relevant data sources. This could include, as noted above, not only personnel files and emails but also project notes, text messages, and messages within collaboration applications like Slack.
The investigator should also make a preliminary list of who should be interviewed and the timeline for doing so—but bear in mind that this list will likely evolve as information is collected.
The investigator should map out their questions ahead of time to make the most of employee interviews, perhaps in consultation with counsel. Online resources may also be helpful. For example, the Equal Employment Opportunity Commission provides guidance on sample questions to ask the complainant, the accused, and any relevant third parties in the context of certain workplace investigations involving alleged harassment.
Collect as Much Information and Evidence as Possible
So far, everything has been preparatory. Now it’s time for action.
The primary goal at this stage is to collect as much relevant and important information as possible without wasting time on cumulative or duplicative information, exceeding the scope of the investigation, or compromising its integrity or legitimacy.
Data collection takes two forms: gathering any relevant physical or digital evidence concerning the allegations and conducting interviews to develop additional facts.
With today’s modern—and frequently remote—workforce, potentially relevant data could be found in dozens of different locations. Emails, chat messaging apps, and online video conferencing recordings or transcripts are just a few formats where massive amounts of workplace communication data can be found.
This data should be gathered in a forensically sound manner as quickly as possible so that the investigation can be concluded rapidly. Gathering this data might require advice and support from legal counsel, information technology teams, and outside vendors that specialize in identifying, searching, and reviewing modern data sources.
Legal technology is a boon to investigators as well, as it enables defensible evidence collection and rapid search features that can aid an investigator in quickly identifying the critical facts in a matter.
After the investigator has gathered and reviewed the evidence, they should conduct interviews with the complainant, the accused, and any witnesses who have been identified. If counsel is involved, they should give a succinct Upjohn warning to clarify that the lawyer represents the company, not the witness, such that attorney-client privilege applies only to the company. Further, the warning should note that the company may choose to waive its privilege and disclose the employee’s statements to a third party.
During the substantive interview, the investigator should take careful notes and follow up on answers that require further development. If important additional witnesses are identified during the evidence-gathering and interview processes, the investigator should repeat this process with those individuals.
Throughout the data collection process, the investigator should be alert for any inconsistencies and continually assess the credibility of each witness and source. Once the investigator feels that they have covered every angle, they should be prepared to make a finding—which is the next step.
Reach a Conclusion and Report Findings
An HR investigation aims to reach a conclusion and find a resolution in as speedy and fair of a manner as possible. This sixth step focuses on how that final decision should be made and how it should be documented.
Up until this point, the investigator should have kept an open mind rather than rushing to any conclusion. Now that the data has been collected and evaluated, the investigator must decide whether some or all of the facts alleged in the complaint are supported by the evidence they’ve gathered.
Creating an investigative report should be intertwined with the decision-making process. This report should summarize the complaint and describe the facts learned from the data gathered and the interviews conducted. The investigative report may also include a summary of the issues, evidence, investigation procedures and timeline, specific conclusions, and any recommendations regarding disciplinary or corrective actions.
Before communicating a final determination to the involved parties or carrying out any recommended actions, the report should be reviewed by the company’s leadership, including top HR personnel, and, as applicable, in-house or outside counsel. This review team can check whether the process, conclusions, and recommended actions comply with any relevant company policies or applicable laws.
This oversight is especially important in light of the possibility of the complaint turning into a lawsuit, in which case a court or other adjudicatory official may examine the steps taken by the company in responding to, investigating, and handling the complaint. A detailed investigative report can establish that the employer acted timely, appropriately, reasonably, and in good faith.
Notify the Parties of the Final Decision and Take Any Recommended Actions
Now that the investigation is complete, it is time to notify the involved parties and implement any necessary corrective actions.
Regardless of the conclusion reached by the investigator, the HR team will need to notify the individual who filed the complaint and any individual who has been found to have engaged in inappropriate conduct. When communicating the outcome to these involved parties, the HR team should do so with professionalism, taking into account the emotional toll that the entire investigative process may have taken on the individual. By treating employees with respect and sensitivity, an employer can create a healthier work environment and reduce the risk of litigation or public disclosure of the situation.
The HR team and the broader organization may also need to take additional action to correct the underlying situation that led to the complaint. This may involve individual disciplinary action such as suspension, transfer, demotion, or termination of employment.
Some situations will necessitate broader corrective actions, like updating or creating new policies, changing organizational structures, implementing individual or company-wide training programs, or taking other measures to correct systemic issues.
After notifying the parties and taking any recommended actions, the investigator or HR team should update the investigative report to document these final steps.