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Seven Steps to Successful Workplace Investigations

20th November 2009
By sandeep in Employment Law
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Everyone complains about work. They complain to their wives, husbands, and friends. With every passing day, however, more and more of these complaints are making their way from the bedroom to the boardroom. In fact, the number of official work-related complaints and allegations are on the rise.

"There has been an increase in complaints due to a misperception of what employment law really is," says Patricia C. Perez, SPHR, Attorney at Law. "I think there has been an increase in claims because there has been a shift in our population's perception of fairness at work."

Perez, founder and CEO of Puente International Consulting located in San Diego, California, combines her legal expertise and human relations background to offer clients a number of practical business solutions. These solutions include creating human relations departments, providing HR training, mediating employee disputes, and conducting internal workplace investigations.

Seven Steps to Successful Workplace Investigations

1. Define the allegation and determine appropriate action. Launching an internal workplace investigation is a huge undertaking. Therefore, it is important to define the allegation and determine if initiating an inquiry is the most appropriate action. An individual familiar with both internal policy and federal employment law should review the allegation and decide if it is harassment, discrimination, or a personnel issue.

2. Implement organization and strategic planning. After defining the allegation as thoroughly and concisely as possible, Perez suggests using checklists to center your investigation. Lists, like the four included in her toolkit, help precisely define allegations and outline the strategic issues and potential actions that surface in the early stages of every investigation. The strategic plan is a flexible document that includes questions such as:

• - What is the allegation?

• - What is the company policy regarding these types of allegations?

• - Who is the complainant?

• - What position does he or she hold?

• - Who is the accused?

• - What position does he or she hold?

• - Who should be interviewed and in what order?

• - Where should the interviews take place?

• - What possible issues may arise during the interview process?

• - Are there any supervisors or managers I need to inform?

• - Does anyone need to be suspended to stop unlawful behavior?

• - Do I need to freeze computer records?

• - Do I need to talk to the IT or security departments?

• - What documents do I need to review?

3. Gather documentation. Documents are important to any investigation. You should automatically pull personnel files for both the complainant and the accused. The complainant's file will tell you if he or she has ever filed other grievances, and what, if any, action was taken. It will also show if the person has a history of complaining about work-related issues or if he or she has an outstanding record but recently received a bad performance evaluation. This could indicate there is something else at play in the situation. As for the accused, the file will show if there is any prior history. It will tell if this is his or her tenth allegation of sexual harassment or it will include accommodations that state how fair he or she is in the workplace. You may also want to start gathering other applicable documentation including internal policy manuals, employee handbooks, e-mail communications, computer histories, cell phone records, security records, computer log in sheets, and sign in books.

4. Prepare a witness outline. Once you have reviewed the documents and interviewed the complainant and the accused, you must decide what questions you need to ask the other witnesses. A witness outline ensures that you include all the issues and red flags that have been raised along the way. It also helps you keep track of what you know, what you want to know, and your general impression of each interview.

5. Analysis and conclusions. In the end, many investigations boil down to he said/she said scenarios, which makes it difficult to come to a conclusion. In these instances it is important that investigators rely on objective evidence, their creativity, and common sense. In light of all the evidence, ask how likely it is that this person is telling the truth. Is his or her story credible? Are the events consistent with the allegations?

"When the facts are balanced, remember all the law tells us to do is conduct a reasonable investigation," says Perez. "Talk to the people you need to talk to, look at the documents you need to look at, and then come to a reasonable conclusion that is supported by evidence. The law doesn't say we have to be perfect. It says we have to be reasonable and base our conclusions on the evidence. I think a lot of people believe that they can't really prove an allegation unless they have a smoking gun."

6. Compile a written verbal report of the findings and corrective action. Every investigation closes with a report of the findings and suggestions for corrective action. Corrective action comes in many forms and is applicable to the complainant and the accused. If you do discover wrongdoing, should the accused be punished, fired, suspended? Should they be required to attend additional training or be put on a warning system? On the other side of the situation, is there anything you need to do for the complainant? For instance, if he or she received a disciplinary notice that no longer applies you should pull it from the files and suspended pay should be reinstated.

"Make sure you do something commensurate with the wrong doing and in line with past practices," says Perez. "Make sure it is fair and reasonable from both perspectives. Don't be too lenient or too harsh. Make sure the punishment fits the crime, but more importantly that it is geared towards making the behavior stop. If the corrective action sends the message that this is unacceptable behavior and we don't want it to happen again, then you have done your job."

7. Getting back on track. Internal workplace investigations are disruptive; therefore, it is important that the company benefit from the experience. Even if nothing unlawful or inappropriate was discovered, the complaint indicates room for improvement. Is additional training required? Is there a follow-up that needs to be done? Are there people who need to be transferred? What can be done to return the workplace to its optimum state?

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