How NOT to Conduct a Workplace Investigation

Mistake #1: A Delay in Workplace Investigation

Don’t delay.  In order to avoid legal liability, employers must promptly investigate complaints of sexual harassment, discrimination, and other workplace misconduct, then take appropriate remedial measures.  The timing for completing the investigation depends on the nature of the misconduct alleged, the imminence of harm to the complaining party or other employees, and the availability of witnesses.  The time for commencing the investigation begins immediately upon receipt of the complaint or notice of a violation of the law or employer policy.  The person receiving the complaint—be it the employer’s human resources manager or other supervisory employee—should immediately ask the six journalism questions:  who, what, when, where, why, and how.  If this initial, immediate investigation reveals that employees or others are at risk of imminent harm, then appropriate protective measures should be taken immediately.  The information obtained from this initial, immediate investigation should be utilized in planning for a more thorough investigation.

Mistake #2: Failure to Interview Alleged Perpetrator of Workplace Misconduct

Incredibly, some employers will act upon an employee’s complaint of alleged workplace misconduct without even asking the alleged perpetrator for his or her side. This is a recipe for disaster.  Even if there are documents, such as emails showing that the alleged perpetrator acted inappropriately, there may have been extenuating circumstances that the employer will not discover unless the alleged perpetrator is confronted with the allegations.  Usually, there are at least three sides to every investigation:  one person’s version, the other person’s version; and the actual truth of the matter.  It is asking for trouble for an employer to fire a person based upon alleged misconduct without informing that person of the allegations against them and giving them an opportunity to respond.

Mistake #3: Overlooking Witnesses in Workplace Investigation

The most reliable witnesses in any investigation of workplace misconduct are likely not to be the person complaining or the person accused.  Rather, bystanders without a dog in the fight may be the most trustworthy.  That’s why failing to interview potential witnesses to the alleged workplace misconduct is a big mistake. Often it is the information provided by neutral observers that will break the stalemate in a “he said / she said” situation.

Mistake #4: Selecting a Biased Investigator.

Failing to select an unbiased, competent, authoritative investigator is a big mistake.  Selecting an investigator who may have a stake in the outcome of an investigation is a really good way for an employer to end up with a lawsuit.  That’s even worse than selecting an incompetent investigator who, although perhaps making mistakes, at least cannot be accused of tipping the scales one way or the other out of bias.  So, too, it is good to have an investigator with sufficient gravitas that the results of the investigation will be respected by all involved, including, perhaps, judges and juries.  The best person to investigate complaints of workplace misconduct is one who is trained and experienced in workplace investigations—preferably one with a certificate from the Association of Workplace Investigators, such as attorney Gene R. Thornton of Thornton Workplace Investigations, LLC.

Mistake #5: Not Documenting the Findings of the Investigation.

Failure to document the findings of the investigation is a big mistake.  Following an investigation, remedial action is either going to occur or it isn’t.  The results of the investigation must be documented in order to memorialize the reasons for that action or inaction.

Mistake #6:  Failure to Draw Credibility Conclusions in Investigation

An investigation needs credibility conclusions.  A good investigator should assiduously avoid just declaring it “a draw” or “stalemate” as to who is telling the truth: the accuser or the accused.  Professional workplace investigators are paid to make the hard calls, using well-established criteria for making credibility determinations.

Mistake #7: Not Preserving Evidence

Failure to preserve written records and physical evidence will hurt your investigation. Along with the written documentation of the findings of the investigation, the employer should preserve, indefinitely, any written or physical evidence examined during the investigation.  This will enable a person, such as an expert witness, to ascertain the adequacy and fairness of the investigation in the event of any litigation or governmental inquiry.

Mistake #8: Lack of Knowledge of Workplace Laws

Conducting the investigation without a knowledge of the laws implicated by the alleged workplace misconduct is a mistake.  Is it possible for a supervisor to conduct an adequate investigation without understanding the numerous laws applicable to the workplace?  Yes.  But there is a great risk that the supervisor will fail to ask important questions and seek out relevant evidence, as well as fail to appreciate the legal and practical significance of facts discovered in the investigation process.  Who better to appreciate the applicable legal framework than an attorney—such as Gene R. Thornton— with decades of experience representing both employers and employees in workplace disputes.  Attorney Thornton has handled cases involving:  the Age Discrimination in Employment Act (ADEA); the Americans With Disabilities Act (ADA); the Civil Rights Act of 1964; the Equal Pay Act; the Fair Labor Standards Act; the Family and Medical Leave Act; the Pregnancy Discrimination Act; the Uniformed Services Employment and Reemployment Rights Act (USERRA); and state counterparts of such laws.

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