Legal Update: How to Conduct Workplace Investigations

A complaint about the behavior of a staff member will hopefully never get to the point where it’s heard by a jury, but you should know how to conduct a thorough, professional and well-documented investigation in case it does. Part of that process is knowing how to discuss the case with the complainant, the alleged offender and their bosses while trying to get to the bottom of the situation. Those are three distinctly different conversations, each of which calls for their own approach.

The complainant will feel victimized, whether they were the alleged subject of sexual harassment, insulted by someone’s political views or reportedly on the receiving end of discrimination because of their race, gender, sexual orientation or religious beliefs. The first order of business is to determine with whom they should lodge the complaint. If your facility has an HR department, they should handle it. If not, their supervisor should receive the complaint, providing, of course, they weren’t the alleged offender in the mind of the complainant. If they were, a neutral party is needed.

Don’t get emotional with the complainant. Before you begin to listen to them, in every possible circumstance, try to have another person in the room taking copious notes. It’s hard for you to ask questions, listen to the answers, make eye contact, judge body language and take notes at the same time.

Give the employee the floor to state what happened. Ask any follow-up questions that occur to you. When they’re done sharing their side of the story, ask if there is anyone who can corroborate their contention. This could lead you to questioning additional witnesses and get you closer to the truth, which is likely somewhere in between the complainant’s and the accused’s sides of the story. Tell the staff member they will not face retaliation because they made the complaint and ask them to report it if they do. Finally, explain the investigation is confidential and instruct them to not discuss it with anyone while you’re looking into the matter.

You should have a general roadmap of what kind of questions to ask the accused party once you sit down and speak with them. Don’t approach them in an overly accusatory way. They’re already likely on high alert and nervous because there almost certainly has been talk about their conflict taking place among other staff members. Don’t make them feel like they’re in a detective’s office with a finger pointed at them and a bright light in their face. Start by simply explaining the purpose of the interview. Say there are “concerns,” not “allegations,” about their conduct and that you want to discuss them to get their perspective on the situation.

Diffuse the situation by saying you know they have a side to the story, which you want to hear before you make any determination on the rights or wrongs about what happened. Take them through the accusations and ask if that’s how they remember it. If they flatly deny anything happened, put the ball back into their court and ask why a colleague would make something like that up. That’s not a loaded question, because their answer could range from something that isn’t believable to a claim that is a reasonable defense, such as the complainant having a vendetta against them.

Ask if the complainant has ever discussed the nature of the dispute with them before. If it’s an ongoing issue, that could help you determine the kind of disciplinary action to take if you determine the accused staff member was in the wrong. Also ask if they have any text messages or social media posts to document any past discussions with the complainant that could support their defense. Tell them to not discuss the complaint with anyone and remind them of the anti-retaliation policy because they will continue to work with the complainant during the investigation.

The immediate supervisors involved in the complaint are in a difficult position, as they have likely already had each party approach them. Ask if they have any relevant information about the complaint and remind them that it’s their job to stop third parties from discussing the confidential investigation. That’s often difficult to accomplish. In some cases, the supervisor might even be close friends with one or both parties. It’s also their job to monitor for potential retaliatory acts during and after the investigation.

No matter how you rule, one of the conversations you need to have is going to be difficult. If you determined there was no wrongdoing, the complainant will likely question the quality of your investigation. The accused will feel the same if you rule their conduct was inappropriate.

If you rule against the complainant, tell them you were unable to substantiate their claims, reiterate they’re not in trouble for bringing them to your attention and explain your door is open if they feel something similar happens again. If you ruled in favor of them, do not inform them about the corrective action you’re taking with the accused staff member, who still has some right to privacy. 

If you rule against the accused, explain your findings and what the disciplinary action will be. Give them a chance to ask questions. For example, if you give them a written warning, they may not be eligible for a scheduled bonus. If you’re going to terminate them, have someone gather their things during the meeting and escort them from the facility when the meeting is over. Check your state laws, as some locales require that you give an employee their final check on the day they’re terminated. 

Apprise supervisors of your decision, and have them go over your facility’s harassment, anti-discrimination and anti-retaliation policies at a future staff meeting.

Finally, document everything. The longest memory is the shortest pencil. If you can’t remember what you had for dinner earlier this week, you won’t remember the nuances of what was said as you questioned the parties in your investigation. I’ve seen juries repeatedly side with employees in he-said/she-said cases, because they expect the facility to be the party that’s sophisticated enough to conduct a thorough investigation and keep good documentation. OSM