At some point, every employer will need to investigate an employee’s complaint. An investigation is an important tool that employers can use to fix a workplace problem and minimize liability. Or, an investigation can create extra risk for employers over and above the risk of the original workplace issue. That extra risk arises when an employer makes mistakes, does not have or follow its own policies, or fails to follow through with an investigation.

Get a Checklist

To avoid increasing your risks, consider having an all-inclusive checklist you can use any time an investigation is needed. The checklist can include items such as:

• Investigative plan
• IT/litigation hold notice and/or preliminary steps
• Issues list
• To do list
• Witness list
• Documents reviewed list (including email or internet searches)
• Witness scripts– examples:
  • Upjohn warning for lawyers to explain that the company lawyer does not represent individual employees and to explain attorney-client privilege
  • Johnnie’s Poultry warning for union settings to explain that participation is voluntary and there will be no retaliation for answers or refusal to answer
• Interview notes
• Witness statements
• Call, email, and voice mail lists
• Issue resolution list
• Remedial action list
• Draft of what will become the final report

Look at Policies

In addition to preparing a checklist, you should also review any policies that relate to investigations. First, do employees know how to report issues? Be sure your policies communicate the rules but are also clear about how employees should report complaints and other issues you want to know about. Further, as part of the complaint procedure, it should be very clear who is responsible for receiving reports of complaints or other wrongful conduct. But you should not stop there—train employees who receive complaints on what to do when they get one. They should also find opportunities to remind everyone how to make a report, and consider documenting these reminders so that employees cannot claim that they did not know how to report a problem in the workplace.

Second, consider whether you need an escalation policy—guidance for when the investigation should be escalated beyond the human resources department. You should think about whether to escalate a complaint that involves

• an employee on the leadership team or a board member,
• an employee in the human resources department,
• a “bet the company” allegation,
• an accusation that an internal investigation might be biased,
• an allegation of criminal behavior, or
• an issue that the employer already knows is leading to litigation.

In these cases, you want to think about whether you need an independent investigator from outside the company to avoid bias or fairness concerns. Having a policy regarding when to do so makes the decision even easier.

Before you Start the Investigation

After deciding to conduct an investigation, there are a number of additional decisions to make:

• Who will the investigator be? This person will be the employer’s “star witness” if the matter ever reaches litigation. Has the investigator ever investigated anything else or been trained to investigate? It is worth considering whether a lawyer will be an ideal witness.
• Will the investigation be conducted under attorney-client privilege? In many cases, an employer will want to use the investigation as an exhibit proving it was reasonable and to avoid liability, so this takes careful planning from the outset of the investigation.
• If a lawyer is directing the investigation, what is considered attorney work product and what is not? Will the report be protected or will there be a separate memo with legal advice? Plan this out in advance.
• How will potential conflicts of interest be handled during the investigation?
• Will the interviews be conducted in person or remotely? Do you want to record them?
• Will the investigator ask witnesses to sign witness statements or will the investigator write up memos of interview summaries?

Closing Out the Investigation

After the investigator completes the investigation and goes back through the checklist to make sure that they have resolved all of the issues on the list and checked off all of the to-do items, the final steps are to (1) take appropriate action, (2) notify the complaining employee and the employee who has been accused of wrongful conduct of the results, and (3) document the investigation with the final report. Often, employers take care of step one and then skip over steps two and three. These steps each play an important role in winding up the investigation.

Step One: Appropriate Action

If the investigation found a policy violation, who determines the appropriate action and who will make sure it is implemented? Not every policy violation merits termination but the punishment should send the message that this behavior is not okay. If the investigation found no policy violation, you may not need disciplinary action. You may, however, want to retrain employees or supervisors about policies. You also may want to reassign employees to avoid future conflicts (assuming you can do so without it looking like retaliation). You may want to calendar a follow up with the complainant in a few weeks to make sure there are no further issues and no perceived retaliation.

Step Two: Notify Employees of the Results

Following up and notifying employees of an investigation’s results can make an employee feel heard, and increase trust of the employer. When an employer does not circle back with the complainant or waits a long time to do so, employees tend to look outside for help. Not surprisingly, plaintiffs’ lawyers often raise lack of follow up and closure during litigation. The EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace recommends that, following an effective investigation, both the complainant and the alleged harasser are informed about the employer’s conclusions and any actions it plans to take as a result of the investigation. If an employer has conducted a reasonable investigation and then taken remedial action, why not tell the employee who made the complaint that the employer has taken these actions? If the employee files a lawsuit, they will find out anyway.

Step Three: Document the Investigation

This is the most important step employers can take to protect themselves from liability if you end up in litigation. The final report should be any employer’s Exhibit A in a lawsuit. The report should describe the allegations, summarize the interviews, documents, and other evidence, and discuss the employer’s policies. The report should also identify the facts that are consistent and that conflict among the witnesses’ statements and/or the documents. Finally, the report should draw a conclusion about what happened based on the credible evidence. Do you want the investigator to decide whether a policy was violated or just provide the facts to someone who will make that decision? Do you want the investigator to recommend action (and risk having the company not follow it)?. The report or the investigative file should reflect Steps One and Two.

It’s not hard to find legal opinions describing investigations gone wrong. Employers that take some time to put together a consistent method for conducting investigations, review and remind employees of their policies, and make some important decisions at the outset of each investigation will reap the benefits later of such careful planning.

Listen to this post