A Step-by-Step Guide to Conducting Workplace Investigations
Employee allegations of discrimination, harassment, or general misconduct are inevitable in the workplace. At the same time, being asked to conduct an employee investigation yourself can be incredibly stressful. Why? Because the stakes are high, and the ramifications can be significant. Further, most of us don’t conduct investigations often enough to feel entirely confident or comfortable with the process.
The SHRM has defined nine steps for completing a successful workplace investigation. I’ve used these nine steps, along with my own personal experience conducting workplace investigations, to structure this complete step-by-step guide.
But, in the spirit of not putting the cart before the horse, there are a few initial details worth noting. Workplace investigation procedures are triggered by a complaint of misconduct, and, before that can feasibly happen, you will need to have a few existing things in place:
Policies and expectations related to employee conduct — Before we can hold someone to a policy, said policy must first exist. Publishing an anti-discrimination policy, an anti-harassment policy, and a code of conduct are all great places to start.
Non-retaliation policy — The policies referenced above should include a statement that retaliation against an individual for reporting a complaint in good faith or participating in an investigation is illegal and subject to disciplinary action up to and including termination.
A process for employees to submit complaints — Publish a simple, one-page employee complaint form to supplement your anti-discrimination & harassment policy, code of conduct, or ethics guidelines.
Once you have received a complaint, follow the step-by-step process for conducting a successful workplace investigation below.
Step 1: Ensure confidentiality
Upon receiving the complaint, assure the complainant that you will maintain confidentiality throughout the investigatory process to the extent possible and consistent with completing an adequate investigation.
The reality is that you would not be able to properly conduct an investigation and maintain complete confidentiality. You should reassure the complainant that you will limit disclosing information related to the investigation to those who “need to know,” but you should never guarantee complete confidentiality in these situations.
This is a great time to remind the complainant of your non-retaliation policy and ask that if they feel they are being retaliated against at any point during the investigation, they should report it to you right away.
Step 2: Provide interim protection
Next, you’ll want to consider whether any sort of interim protection needs to be provided to keep the complainant and/or other employees safe from the behavior of the alleged harasser.
In my experience, this has included things like making changes to the schedule so that these employees don’t cross paths while the investigation is being conducted, suspending the alleged harasser with pay until the investigation is completed, or granting a temporary leave of absence for the complainant so that they do not have to interact with the alleged harasser while the investigation is underway.
Interim protection is not always necessary. These measures are typically only necessary for particularly egregious allegations like physical violence or sexual harassment.
Step 3: Select an investigator
Once you have provided the necessary protection, you can move forward to selecting who will be responsible for conducting the investigatory interviews.
An interviewer should be someone who has a firm understanding of company policies and procedures, is impartial in evaluating evidence, can be trusted to maintain confidentiality, has strong interview skills, and can take detailed notes.
For these reasons, members of the Human Resources team are typically the most logical people to select as interviewers. At the same time, there are instances when this would not be appropriate. If the complaint is leveled against HR or the executive team, I would strongly suggest you consider using an outside counsel or a third-party investigator to conduct the interviews and avoid claims of perceived or actual bias in favor of the alleged harasser. If you're unsure whether your current HR setup is equipped to handle this, HR compliance basics for early-stage startupsis a good place to start."
Step 4: Plan the investigation
Never jump into an investigation without first thoughtfully planning your approach. Start by determining who you will interview and what the appropriate order for your interviews is.
At a minimum, you should plan to interview the complainant, witnesses, and the alleged harasser (in that order). It’s usually best to speak to as few people as necessary while preserving your ability to get a complete picture of the situation being investigated and make a determination.
Next, identify and collect any existing documentation that will be useful to review before your interviews. This will vary widely depending on the allegations being made but could include reviewing the allegedly violated policy, time cards, expense reports, emails/texts/voicemails, etc.
Finally, plan the interview questions you will ask each person. Your questions should be designed to help you determine:
Did the alleged behavior occur?
If so, when/where did it occur?
What specifically happened?
Was anyone else present who witnessed it?
Step 5: Develop a plan for interviews
When it comes to investigations of wrongdoing, timeliness is critical, and interviews should begin as soon as possible without jeopardizing the investigator’s ability to prepare adequately. Ideally, this will be within 24 hours of the complaint.
Set the stage for each interview, regardless of who it is with, by providing a summary of the investigation at hand, what your role is in the process, confirming you will limit disclosure only to those who “need to know,” and reiterating your non-retaliation policy.
I would caution you against recording the interviews, as different states have different laws related to this, and would instead encourage you to take detailed notes throughout. Include as much specificity (dates, times, exact quotes, etc.) as possible throughout your interviews. Retain all of your documentation to include in your final written report.
Step 6: Conduct interviews
Start your interviews by explaining the reason for your meeting and stating why the interviewee is being included in the investigation.
From there, ask broad, open-ended questions about the specific situation that is the subject of the investigation. This could be as simple as, “can you tell me about what happened yesterday at the all-hands meeting?”
As you learn more, you’ll move from broad questions to more specific details based on the person’s role in the investigation. Possible interview questions are outlined below, depending on the interviewee’s role.
Complainant
“What was the conduct you observed?”
“When did it first occur?”
“Can you please describe each incident?”
“What did you say/how did you react?”
“Did you tell anyone?”
“Did anyone else witness this?”
“Have you asked the person to stop this behavior? If so, how did they respond?”
“What would you like to see happen as a result of the investigation?”
Witnesses
“What was the conduct you observed?”
“Can you please describe the incident?”
“What did you say/how did you react?”
“Did you tell anyone about what you witnessed?”
“Did anyone else witness this?”
Accused harasser
“What happened during this interaction?”
“When did it occur?”
“Can you please describe the incident?”
“What did you say/do specifically?”
“Are you aware of anyone else who witnessed this?”
Along the way, ask follow-up questions to fill in the gaps, delineate fact from opinion, and clarify your understanding of the specifics. This could include asking things like:
“What did you mean by…?”
“What made you believe…?”
“What did you mean by your use of the word…?”
“What specifically was said/done to make you feel…?”
Conclude all interviews by asking, “is there anything else I should know about this situation?”, reminding the interviewee of your non-retaliation policy, and confirming if/when they can expect to hear more from you.
Step 7: Make a decision
Ultimately, you will need to decide whether or not the alleged behavior occurred. If you determine that harassment, discrimination, or other misconduct did happen, you’ll need to take corrective action appropriate to the situation. This could include things like a written warning, remedial training, transfer, all the way up to termination for the most severe infractions.
Step 8: Conclude the investigation
As you conclude your investigation, your focus should be on closing the communication loop and reflecting on considerations for the future.
Notify both the complainant and alleged harasser of the outcome, regardless of whether the alleged harassment was substantiated. Ensure the complainant feels that they have been adequately heard and understood, even if they disagree with the results.
Generally speaking, witnesses do not need to be informed of the outcome of an investigation and can simply be notified that the investigation has commenced.
Next, reflect upon what the company can do to avoid similar complaints or misunderstandings in the future and whether it’s necessary to provide employee training or revise company policy.
Recognize that each time you complete an investigation and decide on a course of action, you are setting a precedent for how your company will handle similar infractions in the future. For example, if this instance of employee misconduct resulted in termination, future violations that are substantially similar should likely result in the same level of discipline.
Step 9: Complete written documentation
The final step to complete your investigation is preparing a chronologically written report, incorporating as much detail as possible using your interview notes and any other documentation you gathered.
Your report should include details like:
Scope and manner of investigation
Summary of the allegations
The response to the allegations
Summary of the evidence, including witness interview notes
Documentation of who was the interviewer, who was interviewed, and the date/time that each interview occurred
Final outcome/discipline/resolution and who was involved in making that decision
Workplace investigation reports should then be kept in a confidential file separate from personnel files.
For your sake, I hope the investigations you have to complete are few and far between. But when those few instances inevitably pop up, refer back to this step-by-step guide for conducting successful workplace investigations. If the investigation reveals a performance issue that doesn't rise to the level of termination, you'll still need to have a hard conversation. Here's how to tell an employee they're not meeting expectations without making it worse
