7 Pitfalls of Workplace Investigations

1.  NO RELIABLE REPORTING SYSTEM

Failure to offer an easy to use reporting system increases the chances that the company will not find out about an issue until it has reached “crisis level.” Additionally, employers lose the benefit of various defenses in discrimination, harassment and retaliation lawsuits.

RECOMMENDATION: Ensure employees have an easy way to report issues of harassment, safety violations and other concerns and that employees know the process for making complaints and who to report to (conduct trainings). The #NotMe app provides an easy to use solution for employers because employees can easily report what they are experiencing in a matter of minutes. We serve on the app’s advisory board because there is a need in the workplace for these types of solutions.

2.      DELAY

The longer companies take to investigate an issue, the higher the chance of litigation and in general bad stuff happening. Delaying the start of the investigation may allow the situation to escalate and the employer can be held responsible for failing to take timely action. Evidence may also become compromised if not collected and preserved.

RECOMMENDATION: Investigations must be conducted promptly. At the very least, the complainant should be contacted as soon as possible. Employers are responsible for demonstrating a prompt response to a complaint. 

3.    IMPROPER EVIDENCE COLLECTION AND ANALYSIS

Improper documentation of “chain of custody” may result in document being inadmissible in court, should it come to that.

RECOMMENDATION: (1) Review the company’s privacy policy to confirm that document collection is done according to company rules; (2) Determine which documents are relevant to the scope of the investigation and consider issuing a document preservation/litigation hold instruction; (2) Document chain of custody of materials and documents - how was it obtained, when collected, from whom, where etc.; (3) Make sure subject or witnesses do not have access to evidence and the ability to destroy it; (4) The investigation itself must be thoroughly documented. (I like complaint mechanisms that accurately record complaints as soon as they come in--this shows time, date, etc. of complaint, and memorializes the issues complainant raised. That is one of the reasons we like the app).

4.  BIAS

Choosing an investigator not sufficiently removed from the situation that gave rise to the complaint.

RECOMMENDATION:  To avoid the appearance of bias, make sure the persons conducting the investigation don’t have any personal ties to the parties involved. In particularly sensitive cases or cases involving high-level executives, hire independent investigators ie. a neutral third party (as opposed to conducting the investigation in-house). I have seen investigations conducted in-house by competent Employee Relations or Human Resources professionals only to have their neutrality challenged later. You do not want to have someone conducting an investigation whose initial response is “sounds like a [ridiculous] complaint”.

5.  TIMING OF INTERVIEWS 

Interviewing the subject too early can sometimes be a pitfall. We understand that there may be time pressures, and other scheduling constraints. That said, interviewing the subject too early may increase changes of retaliation, the subject attempting to influence other people’s participation, destruction of evidence or may require inefficiently circling back for follow-up interviews. 

RECOMMENDATION: (1) Review applicable evidence. If possible, don’t interview before you have gathered documents and materials and interviewed complainant and possibly other witnesses. Interview people who may have knowledge about the allegation prior to interviewing the subject. This will allow investigator to develop pertinent questions and allow them to refer to relevant documentation. (2) Make sure interview notes are documented in writing sufficiently detailed and capture relevant content

6.   FINDINGS NOT SUPPORTED BY EVIDENCE

PROBLEM: I have seen reports saying generally allegations are substantiated without the allegations being clearly laid out anywhere, or referencing things for the first time not previously mentioned in the report.

RECOMMENDATION: Your findings should somehow be characterized as follows: In light of X, we find Y, or because of X we conclude Y. If the case ends up in court, your evidence must hold up under scrutiny. You don’t have to have a perfect investigation but one that allows you to make a conclusion based on a preponderance of the evidence. If you cannot make a conclusion, then say so and explain why.

7.  COMPANY FOLLOW UP 

PROBLEM: Not telling complainant about conclusion of the investigation, creating a one size fits all “punishment” or making recommendations that the company ignores. 

RECOMMENDATION: Make sure the complainants is informed of the investigation’s conclusion, its findings and in general, action taken to the extent possible. Make sure punishment is appropriate and consistent with precedent. To make sure the issue doesn’t happen again, properly train subject (and others if applicable) to correct behavior and explain why they’re being reprimanded. Inform team members about company policies. If the person requesting the investigation also asks for recommendations from the investigator, those should be not be included in a report if the company is going to ignore them. If the company chooses a particular course of action after, the company should document the reasons behind the chosen actions and if relevant, why other courses of actions were not taken.  

Elena Paraskevas-Thadani, Esq. and Jodi Morales, Esq. are experienced workplace investigators at EPT Legal, LLC, a firm whose attorneys specialize in resolving workplace issues as neutrals (training, investigations, mediation/arbitration and executive coaching).