or harassment policy), misconduct (such as falsifying records or reports), or criminal acts (such as stealing). In addition, you also should be prepared to investigate lesser problems, even without a formal complaint, like rumors or suspicions of rule violations or wrongdoing.
The consequences of investigations that are not fair or thorough can be extensive. If your termination or disciplinary decisions are based on flawed investigations, they may trigger employee lawsuits for defamation, discrimination, harassment, or wrongful termination. In fact, even the accused wrongdoer may sue when an investigation is handled poorly or
the decision appears unfounded. Significantly, courts tend to punish employers that do not conduct thorough investigations. In addition, employee morale may suffer if employment decisions appear unfair or arbitrary because the process was not thorough or objective.
So, to help prevent these problems and ensure an effective investigation, the following six elements should be part of your investigative process:
1. A Trained and Objective Investigator: The qualifications and demeanor of the person conducting the investigation will influence the perception of fairness. Ideally, the person should have special training and experience in human relations, employment law, and conflict resolution.
Many employers rely on their internal HR professionals or security officers in this role. However, an outside investigator may be appropriate if the issues are particularly sensitive or legally complex. (Note that if you use an outside investigator, you may have to comply with certain disclosure requirements under the Fair Credit Reporting Act, as amended by the Fair and Accurate Credit Transactions Act of 2003.) In addition, some states, such as California, require that third-party investigators be licensed by the state.
2. Written Procedures: You should establish specific procedures to be followed by supervisors and managers who must conduct investigations. The written procedures should address each step of the process and provide guidelines for fact finding (including choosing and interviewing witnesses), proper documentation of the investigation steps
and the facts revealed, protection of confidentiality, and communication of results.
3. A Timely Process: Investigations should be completed as quickly as possible after a complaint is filed, the misconduct is observed, or the alleged incident occurs. Normally, no more than a few days should elapse between each step in the process; and ideally, the investigation should be completed within five to ten days. Of course, investigations
that involve complicated issues like harassment or theft may take longer.
information that would either prove or disprove that the alleged conduct occurred.
To obtain as much detail as possible, the investigator should ask probing and open-ended questions that do not suggest the answer. Interviews should focus on the specific facts of what happened (like when, where, and who was involved) and preserve confidentiality by addressing only the details that the particular person would know. In addition, the tone of
each interview should be professional, and everyone interviewed should be reminded that the organization will not retaliate, or tolerate retaliation, against anyone for participating in the investigation.
5. Documented Results: All steps in the process should be recorded and documented in writing. Written records, properly compiled, aid everyone's memory and can be invaluable in demonstrating, to employees and, if necessary, to a court, the fairness of the investigation and ultimate decision. Since these records may be used in legal proceedings, the information recorded should be limited to facts disclosed and behavior observed and should not include any speculation about what happened.
6. Final Decision and Communication: Once the investigation is completed, management should evaluate the evidence and make a decision. Although most managers and human resources professionals worry about making the "perfect" decision, neither employees nor the courts expect legal perfection. Rather, they expect a rationale decision based on a thorough investigation.
In fact, courts generally do not second-guess employer actions, even when later proven wrong, if management acted fairly and in good faith. Therefore, you do not have to meet a strict rule of evidence "beyond a reasonable doubt," as for a criminal offense, in order to make a proper employment decision.
As a last step, all appropriate parties should be informed of the decision. This communication can be used as an opportunity to underscore the fairness of the process. However, to prevent defamation claims, you should be careful to limit dissemination of the information to those who have a legitimate need to know.