Understanding the most common types of workplace investigations

Workplace investigations uncover the facts behind complex complaints and confusing conflicts.  The Workplace Investigations team at Employers Council provides thorough and objective reports for the full spectrum of investigative issues. There are many reasons an employer may hire a third party workplace investigator, and that wide range of causes can be overwhelming! Let’s simplify why a workplace investigation may be needed. At the most broad, workplace investigation reports largely aim to answer two different questions:

• What happened? (Actions)
• Why did it happen? (Motives)

Some investigations simply lay out the evidence for what may or may not have happened. For example, sexual harassment investigations are mainly concerned with whether conduct of a sexual nature occurred because intent isn’t a determinative factor in the legal definition of sexual harassment. The investigation report won’t draw a legal conclusion; it only details the facts for those who will. 

More commonly, investigations also try to uncover what happened and whether alleged actions were motivated by something improper. This is a less straightforward and more nuanced exploration, which is why hiring experienced investigators is key. Again, investigation reports don’t make any legal conclusions on those motives. They explain the evidence clearly so others (including general counsel, legal advisors, and judges ruling on resulting cases) can make that determination.  

Another helpful way to categorize workplace investigations is by the level of concern. There are two large buckets to consider:   

• Bad Patterns: Repeated minor complaints and/or troublesome trends 
• Red Flags: Complaints that could directly impact an organization’s legal liability

Let’s take each in turn. 

Bad patterns are often best addressed by workplace assessments, a type of investigation that gets to the bottom of issues that don’t — yet — rise to the level of legal liability. Employers get a practical report they can use to problem-solve some of the most vexing workplace trouble spots, including: 

• High turnover, especially when it’s happening in one department or under a specific leader
• Decreased productivity, including sudden spikes in absences or sick days 
• Low morale and/or engagement
• Harmful behavior, like bullying or micromanaging

Employers usually have more control over workplace assessments because these reports won’t be used for later legal decision-making. Employers can limit the interview list and scope of questioning to narrow in on the issue at hand. (In traditional investigations, the investigator follows where the evidence leads.) Investigators at Employers Council have found that workplace assessments can help address emerging concerns before they become serious threats and enable employers to target problems in a focused and efficient way. They can also help build positive work environments where red flag complaints are less likely to occur. 

Red flag complaints necessitate a full workplace investigation because of the potential impact of either inaction or uninformed action. Ask yourself: If this complaint is valid, is it actionable? Could the complaint result in adverse actions, such as termination, demotions, transfers, reassignments, and/or legal charges? (Another reminder: Workplace investigation reports will never recommend actions or give legal advice; that’s the job of the employer’s legal counsel.) These red flag complaints typically fall into four general areas:

• Protected-class complaints: These investigations take motive into account: Is someone alleging discrimination against a protected class? Employers should ensure they understand what classes are protected in their state(s) besides federally mandated protections for race, color, religion, sex, national origin, age (40+), disability, and genetic information. Some organizations also choose to make additional class protections part of their policies. Protected-class investigations show that you take discrimination seriously and inform you ahead of possible Equal Employment Opportunity (EEOC) or other agency charges.   
• Criminal allegations: Although they don’t make up many of Employers Council’s investigation cases, criminal allegation complaints are very serious. Workplace criminal complaints that call for investigations include: 
  • Sexual or physical assault 
  • Theft
  • Vandalism
  • Misappropriation of funds or resources
  • Deceit or falsehood, especially in licensure or compliance

The Workplace Investigation team often refers questions regarding individual instances of drug use to employment law advisors who specialize in those issues. However, investigations may be warranted for larger allegations, such as drug sales happening onsite.

• Retaliation: Complaints of discrimination or adverse actions taken because of a protected activity, not a class, fall under the investigation category of retaliation. Both federal and state laws define these protected activities, which include reporting discrimination, participating in an investigation, whistleblowing, and more. Taking quick action to investigate retaliation claims can help foster a safer, more transparent work environment. 

• Other legal liabilities: Complaints can also allege noncompliance with the many agencies that govern employer behavior. Investigations are needed when complaints allege violations of the Fair Labor Standards Act (FLSA), other state labor laws, the Occupational Safety and Health Act (OSHA), and more. 

Employers who understand the basic categories of workplace investigations will avoid misconceptions, more confidently field complaints, and better cooperate with independent and objective investigators. Ask yourself: Is this complaint about actions or both actions and motives? Is it a red flag complaint or a bad pattern concern? Is the complaint about protected-class discrimination, criminal allegations, retaliation, or other legal liabilities? No matter the category, Employers Council’s team of experienced investigators are ready to help you get answers. 

CONTACT US for help with your next investigation