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Do's and Don't of Workplace Investigations
September 29, 2016
When hearing about an issue in the workplace, it is usually necessary to generate a workplace investigation and go through the proper disciplinary actions if needed. Here are a few Do’s and Don’ts when dealing with a workplace investigation to make sure it is thorough and lawful.
Take all complaints seriously: Make sure you encourage reporting issues in your workplace because employees may fear retaliation. Also, provide ways and make them known on how to report an issue. Document all complaints.
Conduct an initial interview: By doing an interview, you can make sure whether or not an investigation is needed. For example, if it is a small misunderstanding, an investigation may not be needed.
Take steps to prevent retaliation: Make sure you include anti-retaliation provisions in EEO, anti-harassment, and other applicable policies. By doing this, employees will be less likely to fear retaliation.
Interview individuals separately: First, identify who you will be interviewing (the complainant, witnesses, and the accused). When interviewing, look for inconsistencies, more evidence, and names of other witnesses.
Preserve evidence: Make sure to preserve any evidence possible such as emails, videos, or instant messages. It is important to document these and keep them in business records.
Protect confidentiality to the extent possible: You cannot promise confidentiality to an employee. You may keep as much as possible confidential, but there are some situations in which confidentiality must be broken.
Compile a report of findings: In a report, make sure to include chronology of events, lists of witnesses, facts of the case, evidence, and any conclusions you have made.
Maintain a separate investigation file: This is separate from personnel files. It should include: all interview notes, all communications with witnesses, all written witness statements, all documents that support/refute the allegation, the investigator’s report, and all documentation notifying applicable parties of the investigation results and any remedial action taken.
Consult legal counsel: It may be useful to consult legal counsel before an investigation because it may become part of a lawsuit if the employee files a legal claim.
Don’t jump to conclusions: Finish the whole investigation thoroughly before make a decision on whether or not a violation took place.
Don’t choose an investigator with conflict of interest: If you choose an investigator with a conflict of interest it could undermine the credibility of your investigation.
Don’t have a blanket rule concerning confidentiality: You may want to ask employees to avoid discussing the investigation with each other in order to get accurate evidence however the NLRB held that having a blanket ban on discussing ongoing investigations is generally not permitted.
Don’t forget to follow up: Notify both parties of your findings and the corrective action you plan to take, if there is one. Also, within a certain time frame, check up on the complainant to make sure the misconduct is no longer occurring.