Conducting Workplace Investigations

In?California, a workplace investigation may only be provided by the onsite head of HR or their qualified appointee, a Private Detective, or a qualified attorney. HR consultants that are working for a qualified attorney may also gather the evidence.

Investigation should be impartial, and findings should be based on objective weighing of the evidence collected. It is important for the person conducting the investigation to assess whether they have any biases that would interfere with coming to a fair and impartial finding and, if the investigator cannot be neutral, to find someone else to conduct the investigation.

Even if investigators determine they can be neutral and impartial, they must evaluate whether their involvement will create the perception of bias. A perception of bias by the investigator will discourage open dialogue with all involved parties.

There is no one standard training program for workplace investigators. Many law offices and vendors that provide harassment prevention training also provide training for investigators.

Investigations should not be interrogations. Neither the complainant nor the accused party should feel they are being cross-examined. Studies have shown that open-ended questions are better at eliciting information while not causing people to feel attacked. Investigators should ask open-ended questions on all areas relevant to the complaint to get complete information from the parties and witnesses.

If there is no substantial disagreement about the factual allegations it may not be necessary to make a credibility determination. However, many investigations require a credibility determination, including the classic “he said/she said” situation, and it is up to the investigator to make this determination.

It is not uncommon for there to be no direct witnesses to harassment. Yet there may be other evidence that would tend to support or detract from the claim. For example, a complainant who complains about harassment may have been seen to be upset shortly after the event or may have told someone right after the event. This would tend to bolster their credibility. On the other hand, it would tend to bolster the accused party’s credibility if the investigator learned that the complainant complained many months after sexual joking with a supervisor, was just given a negative performance review, and told a co-worker that they could use the joking against the supervisor in the future. In other cases, documents such as timecards, emails or texts might bolster or reduce a witness’s credibility.

Even if there is no evidence other than the complainant’s and accused party’s respective statements, the investigator should weigh the credibility of those statements and make a finding as to who is more credible.

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The investigator is looking to reach?a factual conclusion,?not?legal conclusions. In other words, the investigator, based on the facts gathered, will determine what happened. They will ask the question; did it violate company policy? Violating a workplace policy is a different standard than violating the law. This means that even if the allegation includes concerns about, for example, unwanted touching, an investigator should only reach findings about the facts and should not reach a conclusion about whether there was unlawful (or lawful) conduct.

Investigators should carefully and objectively document witness interviews, the findings made, and the steps taken to investigate the matter.

For more information, join one of our certification classes or Investigation’s Training classes

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