Workplace Investigations – and the need for them – have been in the news a lot lately. So it seems like a good time to review some basics, such as what triggers them, who should conduct them, and why are they important.
A workplace investigation can be triggered by myriad reasons, including a complaint or report of a policy violation or other employee misconduct; employee injury; complaint filed with EEOC, CHRO, NLRB or other agency; lawsuit; or compliance audit. Upon the occurrence of any one of these triggers, the employer, often with the assistance of counsel, should assess the allegations or issues involved and make a determination as to whether an investigation is warranted. Some situations, such as alleged violations of non-discrimination laws, or workplace accidents, require an investigation be conducted.
The scope of the investigation and who should conduct it will vary depending on the specific facts and issues involved. Informal investigations, usually conducted internally by HR or a supervisor, may be appropriate for minor policy violations or incidents, such as excessive absenteeism or a routine work related injury, which would not usually involve multiple witness interviews or extensive documentation review. One of the advantages of a less formal process is that such investigations can be conducted and resolved more quickly. A formal investigation may be more appropriate (or required) for more complex matters or serious policy violations, such as harassment or workplace violence. Formal investigations are often conducted by an external investigator, such as an attorney, and can involve multiple witness interviews and extensive document review; they are especially important where an employer faces legal exposure. Whether informal or formal, internal or external, all investigations should be conducted by someone who is objective and unbiased, knowledgeable about the subject area, a skilled interviewer, credible, and well-organized. Having an attorney conduct the investigation has the advantage of protecting certain aspects of the investigation under attorney-client privilege.
An employer’s obligation does not end with the investigation. Following the conclusion of the investigation, an employer must take appropriate responsive action. Such action should include corrective measures to address the issue, such as appropriate employee discipline (if warranted), as well as implementation or updating of policies or procedures that may have been found lacking. In addition, in order to minimize reoccurrence of inappropriate workplace behaviors, an employer should undertake preventative measures, such as ensuring consistent enforcement of workplace policies, educating its employees regarding workplace expectations, and training its supervisors. An employer’s failure to conduct a prompt and thorough investigation, take appropriate remedial action, and be proactive in addressing inappropriate behaviors, can be an expensive omission – not just in terms of dollars, but in terms of public perception and workplace morale.
Attorney Anthony will be presenting as part of a panel discussion on Workplace Investigations at the CBA’s Advanced Labor and Employment Law Symposium on March 15, 2018.