Conducting thorough and accurate workplace investigations is a crucial part of an employer’s responsibilities. Whether the investigation involves allegations of minor policy violations or more serious accusations of discrimination or harassment, each case should be carefully analyzed to ensure all relevant facts are uncovered so the employer can respond appropriately. If left unaddressed, such allegations may later turn into complaints of retaliation, failure to prevent harassment, or discrimination/bias in the workplace. Below are 3 common pitfalls to avoid, followed by 3 best practices to implement when conducting workplace investigations to help agencies ensure accuracy and prevent future liability.
Common Mistakes
1. Delaying the start of the investigation
Employers have a legal obligation to promptly investigate all complaints of harassment, discrimination, or retaliation. It is imperative that employers begin as soon as reasonably practicable, ideally within a few days, to ensure plenty of time to gather the required information and evidence needed to evaluate next steps. 2. Disorganization The final investigation report should be based on a clear and reliable record of what was reviewed, who was interviewed, when each step was completed, and what was done with the findings. These key elements may be scrutinized, so it is important to be systematic in your execution.
3. Being afraid to consider provisional actions
In some circumstances, it may be necessary to take interim steps to resolve the harm giving rise to the complaint while the investigation is ongoing. For example, if allegations involve discrimination or harassment, employers should consider whether a temporary assignment transfer or administrative leave is appropriate for the accused wrongdoer. However, be careful when considering transferring or placing the complainant on administrative leave, as it could be viewed as retaliation.
Best Practices
1. Document everything, expansive investigation record is irreplaceable
It is likely for any investigation to be heavily scrutinized, meaning that the investigator will have to defend their methodology and contents of their investigation report. The best defense is always a good offense, so investigators should be proactive in creating an extensive paper trail of their investigation. Be sure to collect and review all complaints, background documents, and additional evidence that is provided during the course of the investigation. It is also good practice to record interviews, or if the witness does not wish to be recorded, make note of that in the record and take detailed notes of the interview too. If possible, having a second person available to take notes when no recording is being made can help ensure no details of their statement are overlooked. The final investigation report should include all evidence the investigator considered in making their findings, as well as provide detailed analysis (including a credibility analysis) of how that evidence supports the findings.
2. Consider an external investigator or a licensed third-party investigator
In some circumstances, to ensure an unbiased investigation or to avoid a conflict of interest, it may be necessary to consider an outside investigator. This may be the case when the subject is a high-ranking employee or involves a high-profile incident where using an outside investigator will enhance the credibility of the investigation. An external investigator can also be useful when the issues involved are complex, or when claims of discrimination/harassment/retaliation are involved, to help reduce future allegations that the investigation was conducted with bias.
3. Take corrective action promptly
After the investigation is complete, be sure to take prompt corrective action, if needed. Delaying corrective action leaves the door open for claims of retaliation from the complainant and allegations of bias if an accused stays on administrative leave for an inordinately long period of time. If misconduct is involved, it is in everyone’s best interest for it to be resolved quickly and efficiently.
How California Labor Solutions Can Assist
At California Labor Solutions, we offer specialized human resources investigation services to help employers address workplace complaints effectively and in accordance with the law. Our skilled team conducts thorough and unbiased investigations, ensuring adherence to California labor regulations, safeguarding employees from retaliation, and providing practical recommendations to prevent future issues. For expert workplace investigations and additional services, visit www.californialaborsolutions.com today or call us at (800) 949-2049. *California Private Investigator License Number 26311. Disclaimer Please note that the updates, advisories, and regulations we receive from the promulgating agency often contain ambiguities and/or are often amended, modified, or updated. This material/article/email does not contain any legal advice. The information and opinions expressed herein are based on our reasonable interpretation of the issuing agency’s publication at the time the opinion is expressed and is, therefore, subject to change based on further developments. The effect of the opinions expressed may be different based on your particular circumstances, and it is recommended that you not rely upon these general opinions prior to obtaining a consultation with your legal and/or financial advisors.