It is one thing to conduct a proper investigation of a workplace problem. Most HR professionals understand how it must be done. But failing to appropriately document and conclude a workplace investigation can leave an employer as exposed to legal liability as if it had never conducted the investigation to begin with.

Initially the investigator (presumably an HR professional) will conduct at least two interviews—one with the complaining employee and one with the accused employee. That number can go up if there were witnesses to the incident or incidents.

During this process, the investigator should keep a log of all of actions and all communications to and from the complainant, the accused and any witnesses, by date. For each interview, documentation should include the names of all attendees, date/time/location of the interview, and all key points and fact-based observations. It is important not to draw any conclusions at this point. The main goal is to simply document all the facts. 

Once you have interviewed all key individuals and produced all the evidence, it is time to analyze all the facts in the light of the organization’s policies to determine if any violations occurred. In order to draw valid conclusions, you must assess the credibility of the central players and all key witnesses, taking into consideration their individual perspectives and likely biases. Consider some of the following questions:

• Did some form of wrongdoing or harassment occur?
• If so, would it be considered a serious offense?
• What has the employer done in the past in regards to similar violations?
• Are there any federal, state, or local laws that require certain actions to be taken?
• How long has the employee who violated the policy been employed at the company?
• Has the employee ever violated any similar policies in the past?
• Are there any other “mitigating” circumstances that could impact the conclusion?

The next step is to create a summary report of the investigation. This report can be a very effective tool for heading off discrimination and harassment charges. It serves a number of very important purposes: providing a written record of the steps the employer took, providing evidence to support or refute the allegations of the complaining employee, and standing as evidence by itself that the employer took the situation seriously and responded appropriately.

A well-written investigative summary report should contain the following elements:

• An overview of the complaint itself and how and when it came to the company's attention
• A list of individuals interviewed and documents used as evidence
• Findings of fact/summary of relevant information gathered from interviews
• Conclusion drawn from the facts indicating whether any policies have been broken
• Recommendations and next steps – this section will indicate whether any corrective action will be taken

When creating the summary document, you must be careful of the language you use.  The goal is not to determine if the law has been broken (that is something for a court to decide if there was a lawsuit), but if a company policy has been violated. Therefore it is best to avoid such terms as “harassment,” “discrimination” and “wrongdoing”; instead use terms such as “inappropriate,” “unprofessional,” and “policy violation.” If you are preparing the document at the request of legal counsel, you should place the term “Attorney-Client Privileged” at the top of each page.

Once you have finalized a conclusion, you should follow up immediately with the complainant and the accused to communicate the outcome of the investigation. You should advise their respective supervisors ahead of time. Be sure to indicate which allegations could be supported, which ones could not be substantiated and if any policies were broken. Even if you cannot share details, make sure the complainant knows what action, if any, the organization will take against the accused.

Lastly, make sure that both the complainant and the accused understand the policy that was allegedly violated, regardless of the findings. In addition, remind all parties that retaliation of any kind is prohibited and that they should notify Human Resources immediately if they have any other concerns or complaints.

As with the entire investigation process, you must document these wrap-up meetings. You should provide separate memos to the complainant and the accused, tailored to each one, that summarize the complaint and the outcome of the investigation. These will serve as documentation that you addressed the issue and closed the investigation. Put a copy of the document in their respective personnel files, in a sealed envelope if necessary. Place all other documentation, including the summary, in a separate confidential file—not in the personnel files.

Afterwards you should review the entire incident and decide whether any policy changes or organization-wide initiative (such as training) should take place in order to avoid similar problems in the future.

Oftentimes helping the involved employees reintegrate—i.e., get back to normal—is very difficult. Investigations are emotional and time consuming, and getting back to normal may take additional time. You should check in regularly to make sure things are going smoothly and no new issues have arisen.

Every investigation is unique. But every HR professional should use a similar process and methodology to investigate complaints to build trust and to show their commitment to treating employees fairly.

ASE offers a class entitled Workplace Investigations for those interested in learning how to conduct an efficient and legally compliant investigation. Click here for the calendar with class dates.

Sources: Lexology 2/25/2013