Everything employers need to know to prepare, conduct and outsource thoughtful and fair investigations
When workplace conflicts arise, confusion does, too. HR professionals can find themselves asking: Who’s telling the truth? Is there any way to really know? Is my organization at legal risk? Is someone at fault? What is my responsibility in responding to these allegations? If someone was harmed, what needs to be done to make things right? What happens if I just…don’t…do…anything?
Fair, balanced and thorough workplace investigations can begin to answer these questions — and more. An experienced investigator can root out the facts at the bottom of a complex dispute. A well-written workplace investigation report delivers a clear finding that can guide an organization’s response. Many HR professionals approach workplace investigations with trepidation, but it doesn’t have to be that way. This Employers Council guide will walk you through the whys, whens and hows of workplace investigations, so you can face thorny complaints with confidence. Read on to discover how to conduct workplace investigations efficiently, fairly and competently.
- The top 5 workplace investigation challenges
- Plan ahead for smoother workplace investigations
- Signs an investigation is warranted
- What does a workplace investigation report include?
- The workplace investigations process
- How much does a workplace investigation cost?
- Hiring for investigation services
- Why choose Employers Council
The top 5 workplace investigation challenges
Workplace investigations can be one of the most stressful parts of an HR or business leader’s job. Interpersonal conflict, possible legal liability, employees in distress — investigations are full of high-anxiety components that can test even the most seasoned professional. Additional factors can raise the stakes for organizations contemplating launching a workplace investigation:
- Lack of investigation experience: “A lot of times we help members who’ve never had to do an investigation before,” shared Julia Paris, Employers Council Managing Attorney, Workplace Investigations. “So the biggest challenge is everything. It’s not necessarily intuitive, this process. It can feel very daunting.”
- Overburdened HR departments: Workplace investigations are time consuming. HR departments who are already stretched thin can have trouble conducting a fair and unbiased investigation on top of their regular daily duties.
- No access to supporting legal services: Workplace investigators do not draw legal conclusions in their reports. And while many licensed investigators are also attorneys, they can’t offer legal advice in the course of an investigation. Organizations without separate legal counsel can struggle to make informed decisions both during and after an investigation.
- Difficulty managing the workplace during an investigation: Without careful management, workplace investigations can disrupt productivity and lower morale. In addition, if the investigation is being conducted by internal employees, they can feel isolated and caught in the middle of high-profile conflicts.
- Unrealistic expectations: Workplace investigations only deliver fact-based findings; organizations then need to decide what to do with what they’ve learned. “Employers sometimes assume the investigation is going to resolve all issues within the work environment,” said Robert Jahn, Employers Council Workplace Investigator.
Although quality investigations can give organizations a clear view of the facts, afterward, they will need to manage any remaining conflict in the workplace, communicate with those affected, obtain legal services if necessary, and determine their next steps. Employers Council has separate resources that can help employers with all of those tasks, but the workplace investigation itself is necessarily limited in scope.
With these challenges in mind, it can be tempting to delay or skip investigating altogether. But with the right preparation and resources, well-conducted investigations can help build fair, just and healthy workplaces.
Plan ahead for smoother workplace investigations
HR departments can prepare for worst-case scenarios by having a flexible, practical investigations plan in place. Unless your organization is subject to other compliance requirements, your official policy handbook may simply state that you welcome complaints and will investigate them as appropriate. Informally, your team needs to know your approach to investigations and commit to handling them consistently.
Robert says employers should keep the word “due” in mind. “Due diligence and due process: You engage in due diligence on the investigation, and the parties involved should be afforded due process,” he said.
That means everyone gets equal time and opportunity to tell their side of the story. Yes, even though it is uncomfortable, respondents should always be told there is a complaint against them and given a chance to respond. Interviews are conducted and documented consistently. Reports are thorough, fact-based and timely.
Organizations should talk over their best practices to ensure investigations go smoothly, including:
- Talk to your legal counsel to establish general guidelines on whether a complaint warrants an investigation.
- Know your decision-making process for whether to use an internal or external investigator; have pre-vetted external investigators on file.
- Discuss what precautionary measures are available (shift/location changes, paid leave, etc.) to de-escalate workplace tensions, if necessary.
- Have systems in place that keep documentation — security footage, company emails, personnel files — in good order.
Workplace investigation red flags: When you need to investigate
At the most basic level, a workplace investigation is triggered by two things: A complaint and a conflict about that complaint.
“Sometimes our members really just want us to document what they already know,” said Julia, explaining that only disputed complaints need to be investigated. “If someone admits to a complaint, you can move right to what to do about it and save everyone a lot of time, money and inconvenience.”
Investigations typically come from written or verbal complaints and usually fall into three general categories: Conduct, or unacceptable behavior in the workplace; motivation, or unlawful discrimination, which can be tough to establish; and workplace assessments. Many complaints include concerns about both conduct and motivation, and every complaint should be considered carefully.
Here are five red flags that necessitate a full workplace investigation:
- If you’re weighing an adverse action against an employee. If the complaint is true, is it actionable? Is someone alleging harassment, policy violations or other behaviors that demand consequences? Adverse actions aren’t just limited to termination; they can include more minor moves, such as demotions, transfers or reassignments.
“If the complaint is something we consider employer-actionable, then we advise investigating before taking action to ensure that you’re acting on accurate information,” Julia said. - You receive a protected-class complaint. Federal laws prohibit workplace discrimination on the basis of:
- Race
- Color
- Religion
- Sex (pregnancy, sexual orientation and/or gender identity — this includes sexual harassment)
- National origin
- Age (40+)
- Disability
- Genetic information (including family medical history that could show health risks)
State laws build on the federal baselines of protection, so employers need to be aware how protected classes are defined where they work.
“If you don’t address it, it could later rise to a charge with the Equal Employment Opportunity Commission (EEOC) or a similar state division,” Julia said. “It’s important you have a record to show you did address that complaint: you listened, you took it seriously, you came up with a finding, and you did your best to resolve that employee’s concerns.”
- The complaint opens your organization to other legal liabilities. Beyond discrimination, some allegations may deal with wage and hour issues, FMLA, interference and other serious employment law violations.
“An employee might not even realize what they are alleging from a legal perspective,” said Julia. “Anything that can lead to a charge or lawsuit later on is something you want to investigate.” - The complaint includes criminal allegations. Violence in the workplace, theft, illegal drug use, retribution for refusing to obey unlawful instruction, corporate/financial malfeasance — all of these complaints warrant an investigation.
- You need clarification on vague and/or non-legal complaints. “When we only focus on legal liability, then we may miss some situations that we really should address,” Julia said, citing the confusion that unclear complaints, vague allegations and general conflict — even in remote or hybrid environments — can cause. Workplace incivility can quickly escalate into more serious problems. In those cases, organizations can choose to do a workplace assessment investigation to determine what the workplace conflicts actually are.
“Technically, it might not be something that could rise to the level of a charge, but you still have unhappy people, and it’s causing a big problem in your workplace,” Julia said. She recommends organizations pay attention to practical problems they need to resolve. Nipping early conflicts in the bud can prevent more expensive complaints and serious charges later on.
What does a workplace investigation report include?
The end result of every workplace investigation is a findings report. Those new to workplace investigations may be surprised at what is and is not included in the report.
“We make factual conclusions,” Robert said. “I often have to tell employers, for example, we’re not making a determination that there was sexual harassment — that’s not going to be in the finding of my report. It’s going to be that Employee A made this comment or Employee B touched Employee C inappropriately.” Determining whether the facts warrant a charge or disciplinary action is outside the scope of the report itself.
Lori Karl, Employers Council Workplace Investigator, is known for her “legendary” investigation reports. “Our members and their attorneys often comment on the high quality of Lori’s reports,” saidJulia. What makes her reports respected? Attention to detail, thoroughness, analytical acuity and lack of bias. (Any language that even hints at bias can cause trouble if the finding leads to a court case or an agency charge.) Lori explains what should be included in every workplace investigation report:
- The details — Include the investigation timeline; names, titles and reporting structure of everyone involved; and important investigation dates.
- Summary and background
- Fact-based description of the allegations — “Sometimes it can be difficult to word the allegations in a way where you can reach an unbiased finding,” Lori said. “We don’t include words like ‘harassment’ in the description of the allegation, because that would require a legal conclusion. We just include factual allegations.”
- Facts that support the allegations
- Facts that refute the allegations
- Analysis — “The difficult part is the analysis,” Lori said. “Your analysis should lay out how and why you reached your finding. While investigators make objective findings, the writing of the analysis is an art, not a science.” In neutral language, the analysis section should clearly show how the investigator came to the finding.
- Finding — Again, the finding should be factual and not draw or imply any legal conclusions.
- Attachments — Full statements can be attached to provide context for decision makers but shouldn’t be shared with witnesses or parties in the case.
The workplace investigations process
How do investigative teams arrive at that final report? Every workplace investigation goes through the same basic stages, even if the shape, scope and details differ. Workplace investigations vary in length depending on the complexity of the allegations, the number of interviews needed, how long it takes to schedule interviews and gather materials, and the amount of documentation to analyze.
Here are the steps to conducting a thorough workplace investigation:
1. Interview the complainant.
Ideally, the HR department should obtain a written and signed statement and all supporting documentation the complainant can provide.
2. Take steps to preserve relevant evidence.
Based on the allegations, if there is any relevant evidence that might be routinely (or pre-emptively) deleted, take the necessary actions to preserve it.
3. Put precautionary measures in place.
Based on the complaint, de-escalate workplace tensions by separating employees, if necessary and possible. Serious allegations may call for administrative leave.
4. Identify the investigation’s goals.
“It’s really important to have a roadmap based on the original allegations pulled from the complainant’s statement,” Julia said. “Scope creep is expensive and cumbersome.” Know what you’re trying to find from the very beginning of the investigation.
5. Make an investigation strategy.
“The plan is the glue that holds the investigation together,” said Julia. “Having that plan at the outset helps keep your investigation focused. It’s more efficient, it’s less disruptive, and it will improve the quality of the investigative report.”
6. Choose an investigator.
Choose experienced, unbiased professionals. See below for what to look for in quality investigators and how to decide between using internal or external professionals.
7. Identify witnesses.
Decide who needs to be interviewed to corroborate and refute the allegations. Always include the respondent and allow complainants and respondents to suggest witnesses as well.. Witnesses should provide factual information only; character witnesses are unnecessary in a workplace investigation.
8. Identify and obtain relevant evidence.
What information could help prove or disprove the allegations? Gather relevant information, including security footage, company emails, personnel records, etc. Keep all documents in a confidential and secure place.
9. Interview witnesses — in-person or virtually — and document the interviews.
Interview witnesses one at a time in a safe, confidential place. Limit questions to factual inquiries within the scope of the investigation. Make sure all witnesses know they can stop the interview at any time or refuse to participate. Never promise confidentiality (you will be sharing the report with the organization’s decision makers), but you can tell them you will only share their statements with people who need to know.
In the continuing pandemic era, many investigation interviews are being conducted virtually. Virtual interviews can make investigation scheduling easier, cut down on investigator travel costs, and help interviewees feel more comfortable because they are able to remain in their chosen environment. On the other hand, virtual interviews can sometimes yield less information because investigators don’t have access to as many body language and non-verbal communication cues. Investigators should strive to conduct interviews consistently, when possible, although some cases will call for a hybrid approach.
10. Revise and adapt.
Sometimes investigations will take unexpected turns or uncover additional issues that need to be investigated separately. Revise your investigation plan as needed.
11. Write the report.
Detail the evidence and your findings and share with the organization’s decision makers.
How much does a workplace investigation cost?
The cost of not doing an investigation
The more important first question is, what is the cost of not doing a workplace investigation? “A blank check,” Robert said, simply. “The jury will write it.”
Legal ramifications are hard to estimate: Do a quick scan of the latest EEOC news, and you can see discrimination lawsuits cost companies anywhere from tens of thousands to millions of dollars in settlements alone. In some of these cases, organizations actually did conduct investigations. Some did them poorly; some didn’t take appropriateaction after the finding. Some did everything they could during and after the investigation, but still needed to rectify the situation.
“A workplace investigation helps establish your credibility as a responsible employer and may mitigate some of your liability,” Julia said. “It’s going to make it much harder for you to defend an EEOC charge or a lawsuit if you didn’t do anything but had knowledge of a complaint.”
There are many daily hidden costs to neglecting workplace investigations as well. “If problems don’t get resolved, the cost is low morale, low production, infighting, workplace disruptions…” Julia listed. “There are both legal and practical costs to not doing an investigation.”
The cost of conducting a workplace investigation is often much, much lower than the penalties for not investigating.
Factors that influence the cost of investigations
Investigators usually charge an hourly fee for their services. Factors that affect the total cost of an investigation can include:
- Breadth of investigation scope
- Complexity of the allegations (establishing motive is more difficult and time-consuming than simply investigating behavior)
- The amount of evidence to review
- The number of witnesses
The cost of carrying out a workplace investigation (or the penalties for not doing one!) vary substantially and will depend on the circumstances of each complaint.
Considerations when hiring workplace investigative services
The first question an employer should ask is whether they have the right resources to conduct the investigation on their own. There are many reason to turn to a third-party workplace investigator, including:
- Lack of sufficiently trained workplace investigators inside the organization
- Time constraints
- Upper management or HR is implicated in the complaint
- Other bias or retaliation (or appearance of) concerns
- High profile complaints, or ones with significant legal liability
- Organizations want to demonstrate that they are taking the complaint seriously
- Organizations want to keep their own counsel available for legal advice about the investigation and its results
Lori said sometimes employers aren’t aware that timeliness should factor heavily into their decision. “One thing that courts look at is whether the investigation is done promptly,” she said. “Oftentimes, organizations will have an HR generalist try to do the investigation, but they really don’t have the time to devote to it.”
Bias, or even the appearance of it, is another key reason employers turn to outside investigators. “Ideally, the investigation needs to be done by someone who is not under the authority of the respondent,” Julia said. “You don’t want them to be involved with either party because it can lead to an appearance of favoritism or bias.”
Hiring an outside investigator also gives HR and leadership an interpersonal buffer. If employees are unhappy with the report’s conclusions, they can’t directly blame their coworkers. External workplace investigation services can instead help the organization focus on next steps and moving forward.
What should employers look for when hiring an external workplace investigator?
Experience
“Certifications are helpful, but they’re not, in my opinion, as important as good experience in lots of different areas and organizations,” said Julia. Experienced investigators have credibility, know how to maintain objectivity, and are well-versed in the minutiae of workplace issues.
Legal knowledge
“Being an attorney helps you know what questions to ask,” Lori explained, “even though we’re not driving to legal conclusions.” Legal know-how also informs the scope of the investigation itself. Investigators with employment law backgrounds have insight into what needs to be investigated and why.
The ability to establish rapport with witnesses
An investigation is only as good as the information available. A talented investigator is able to both gently command respect and make witnesses feel comfortable in the interview room.
Analytic skill & reporting acumen
Employers want a clear, factual report they can use to make smart decisions. Top investigative talent will have a stellar reporting reputation. Many will also be able to offer you mock reports to showcase their documentation approach.
In some cases, specific experience
Some investigators focus on a specific type of investigation or industry. This can be helpful, especially in sensitive or high-stakes cases. “I was a police officer,” Robert shared about his own background. “If I have cases involving police departments, it helps put witnesses at ease. The witnesses are more comfortable giving out information because I know the lingo.”
Do you need a third-party workplace investigation?
Employers Council offers unique workplace investigation services
Employers Council offers employers a unique approach to workplace investigations, especially when compared to the services of law firms and private investigators. Employers Council stands out in several ways:
1. Experienced team with deep institutional knowledge
“Employers Council is over 80 years old, and we’ve been doing workplace investigations for decades,” Julia said. “We’ve been conducting investigations for a long time, and we have a wealth of expertise and experience.”
2. Standardized, proven process and layers of review
With decades of practice and legal knowledge, Employers Council has developed time-tested techniques to deliver consistently thoughtful results. All Employers Council investigators adhere to the same high standards for conducting interviews and writing reports; everything goes through at least one, and often two, layers of legal review. “We have a very methodical approach to conducting these investigations,” Julia explained. “But within that, our investigators are experienced enough to know when flexibility is required.”
3. All-attorney team
Every Employers Council investigator is a licensed attorney in addition to being a trained investigator. The team also has two attorneys licensed in California on staff to handle investigations in that jurisdiction.
4. A large team with plenty of bandwidth
At any one time, Employers Council has 8 to 10 active investigators carrying full dockets, making it possible to respond to requests quickly. “We usually have the availability to get someone assigned to your case within a couple of days at most, and it’s often the same day,” Julia said.
5. Very competitive pricing
Employer Council’s prices are below the market rate, especially when compared to private law firm fees and investigations done in California. Members receive additional discounts, which can put hourly fees for Employers Council investigations at around half the cost of other options.
6. Access to additional HR and legal services
Employers Council’s Workplace Investigations team carefully guards its independence within the organization to protect their objectivity. Employers Council investigators do not collaborate with other staff attorneys, and the department’s documents and processes are siloed to maintain neutrality and privacy.
Separately, Employers Council members at the Consulting and Enterprise membership levels have access to legal counsel through the Council’s Legal Services team, which can help advise them during and after the investigation process. If issues arise during the investigation, the council has many HR and legal services — including legal training, outsourced HR services, benchmark data, and more — available to help members improve their workplaces.
Contact the Workplace Investigations team to find out how they can help your organization conduct fair, accurate and clear investigations.