While HR professionals are trained to deal with undesirable employee behavior, the investigative process is never fun to manage.
Not only are investigations stressful, but the difficult conversations and legal liability involved can make them emotionally draining and downright risky. Still, an effective investigation process is critical for preventing problems from turning into legal disasters for the organization and driving increased turnover.
VirgilHR understands the challenge and importance of conducting a thorough and compliant investigation. In this article, we’ve compiled tips for how to structure and plan an investigation, techniques for interviewing employees, and common mistakes to avoid. Applying these methods will enable you to maintain credibility, ensure fairness, and reduce risk.
From Intake to Closure: How to Structure and Plan an Investigation
The wrong approach to investigations can increase your legal risk. Here’s how you can remain fair and compliant throughout the process and help ensure the best-case scenario.
Intake and Planning
Once you receive an employee complaint, it’s important to log it and assess any immediate risks to the organization or involved employees. For example, you may need to take interim measures like placing an employee on leave or immediately mitigating a physical hazard to promote safety.
Before the investigation begins, you’ll want to define its scope by clearly outlining the allegations and any relevant policies or laws that may have been violated. Your initial documentation should also state the objectives of the investigation to help you stay on track during the process.
It’s essential to choose a neutral, well-trained investigator with no conflicts of interest. They should take time to develop a timeline, list key people to be interviewed and questions to ask, and determine what evidence needs to be gathered.
Compliance Tip: Include an explanation of formal processes to file a complaint in your employee handbook.
Evidence and Interviews
Start by interviewing the complainant, capturing specific details about what happened, when, who was involved, and where the incident took place. Ask for and examine any evidence the complainant presents, including emails, texts, documents, and recordings.
You should also gather the names of any witnesses and interview them as well. Finally, inform the accused party of the allegations and give them a chance to respond in a private interview setting.
Here are some key points to keep in mind when conducting your interviews:
- Emphasize confidentiality and set expectations for candor
- Start with more neutral questions to build rapport
- Avoid making assumptions or showing judgment through tone or body language
- Probe for specific details, which may require rephrasing questions to clarify facts
When assessing the credibility of the person you’re interviewing, consider their demeanor and the plausibility of their story. You’ll also want to evaluate the consistency of their account and whether it’s supported by outside evidence.
Compliance Tip: Document all interviews thoroughly and adhere to state-specific laws requiring you to inform employees if you’re recording the conversation.
Analysis and Final Decision
Take the time to analyze the results of your investigative practices to determine whether company policies or laws have been violated. In your final decision, you should make note of any issues that remain unresolved due to a lack of evidence.
Compliance Tip: Any conclusions you reach should be evidence-based, which means you can back up what you say with the information and documentation you’ve gathered. This will help you avoid bias in your decision-making.
Closure and Action
Once the investigation is complete, create a formal report detailing the incident, parties involved, evidence, findings, and recommendations for next steps.
From there, you can implement appropriate disciplinary or corrective actions, as well as any preventive measures needed to keep these issues from cropping up in the future. Inform the complainant and the accused of the outcome while reinforcing company policies and expectations in your discussion.
Compliance Tip: Preserve confidentiality in your final discussions. Additionally, avoid retaliatory behavior, as seen in the 2022 case involving Landmark Dodge in Independence, Missouri, where the general manager retaliated against employees for reporting discriminatory hiring practices.
Red Flags, Risk Areas, and Common Mistakes to Avoid
Make sure to avoid the following pitfalls during your investigation:
- Failing to maintain documentation according to federal and state retention rules, for which the EEOC mandates a timeline of at least one year after termination
- Using inexperienced or biased investigators who may allow personal opinions or vested interests in the outcome sway their findings and final decisions
- Promising absolute secrecy, which can ultimately lead to legal issues
- Writing vague reports or failing to collect evidence that can back up your findings
Compliance Tip: Stay aligned with EEOC standards on harassment and discrimination investigations.
Sound Workplace Investigation Practices Keep Your Organizations and Employees Safe
Nearly one-third of employees have been bullied at work. Nearly one-fourth have experienced harassment of some type. Clearly, unacceptable behavior is a serious issue in workplaces across the U.S., and it’s crucial that your HR department has a plan in place to investigate these incidents effectively.
VirgilHR’s automated platform can help you develop a legally sound process that maintains employee trust and ensures compliance with federal and state regulations. Schedule a demo today to discover how we can reduce your risk when dealing with sensitive employee issues and investigations.