Employment Law Q&A: 8 steps to performing an effective workplace investigation

Q: How do I perform an effective workplace investigation?

A. To ensure that your company is protected following allegations of wrongdoing in the workplace, the following steps should be taken as soon as you receive a verbal or written complaint:

Step 1 - Determine who should conduct the investigation
Investigators should be trained in conducting employee misconduct investigations, knowledgeable of policies and procedures, have good interview skills, and be impartial. There are a number of people that should not conduct an investigation, including:

• The person the employee made a complaint against.
• Anyone who is personally involved with the allegation, such as a witness or complainant.
• Anyone who is personally involved with the employee, such as a friend outside of work or a relative.
• Anyone who is emotionally involved, such as someone who is too angry to be objective, or on the other end of the spectrum, one who is too emotionally involved in defending the employee.

Step 2 - Develop an investigation outline

• Identify the allegations/complaints.
• Identify who will be interviewed and the order of the interviews.
• Identify documents to review. Examples may include but are not limited to:
  • Payroll records/computer log-ins
  • Work rules and policies
  • Bargaining agreements and/or administrative rules
  • Acknowledgement forms of work rules, policies, etc.
  • Training and meeting records (attendance records and dates, subject matter or agenda, or notes/minutes)
  • Prior disciplinary actions, coaching and counseling, and written directives
  • Performance evaluations
  • Consider outlining topics to cover rather than questions

Step 4 - Interview questions

Outline the points to be covered in the interviews rather than create specific scripted questions to be asked. If questions are prepared and the witness responds differently than anticipated, it may throw the interviewer off track. Additionally, with prepared questions, interviewers may become too focused on the script and miss the opportunity for follow-up questions. Prepare topics that will be asked of interviewees so that answers can be compared and contrasted.

Specific pointers include:

• The interviewer should create a flow to the questions and answers that help make the witness comfortable providing information. Questions generally should be: interviewer’s technique should be to ask:
  • Short and straightforward.
  • Asked one at a time.
  • Asked in chronological or other methodical order to avoid confusing the witness.
• The interviewer should generally begin with broad, open-ended questions and transition to specific questions to gain more detail.
• The interviewer should not rush the witness.

Step 5 - Investigation notebook (See the Investigation Report below)
During the course of the investigation, you will be obtaining documentation to prove or disprove allegations. Identify all documents as to:

• When received.
• Where and from whom it was received.
• Source of document (for example, work rules, policy manual, witness statement).
• Preserve a copy of the work rules, policies, and procedures at the time of the investigation. Since these documents are subject to change, it is important to make sure that you maintain a copy of the rule/policy in effect at the time of the investigation.

Step 6 - Evaluating results of an investigation

Ensure all the witnesses have been interviewed. After the interviews have been conducted and the evidence gathered, management needs to determine the credibility and probative value of the evidence. For example: Is there greater information supporting or disputing the allegations? Was there mitigating circumstances? Were applicable policies clear and consistent? Were the witnesses consistent in their version of the facts? Was any of the witness testimony speculative? Did the witnesses have impairments that affects his/her testimony? What was the demeanor of the witness?

Step 7 - Concluding the investigation

Present findings to management and/or decision makers. Report the decision to employees being investigated. If there is a complainant, communicate the results to them. Communicate the company’s non-retaliation policy.

Step 8 - Investigation Report

The investigation into the allegations of misconduct should be well documented by management prior to a decision being rendered and action, such as discipline, being taken. The investigation report should include all information gathered during the investigation, including copies of witness statements, documents gathered, and all other information supporting the conclusion reached.

Case illustrating the benefits of conducting effective workplace investigations

A recent Ohio appellate decision illustrates how good investigation techniques work in practice and the benefits of effective workplace investigations. (See Williams v. PNC Bank, N.A. et al., Ohio Ct. of Appeals Case No 111452, 8th District).  

In this case, the employer received complaints that a bank branch manager was falsifying call logs and mishandling client referrals. Upon receiving the complaints, the employer initiated an investigation by an experienced employee relations investigator, who took the following steps:  

• Relied on the employer’s written policy related to dishonesty
• Interviewed four witnesses with information about the allegations
• Made a recommendation to terminate based on the credibility of the witnesses and seriousness of the policy violations 

Based on the investigator’s recommendation, the employer terminated the branch manager’s employment. The terminated employee than sued alleging race discrimination and retaliation.

The trial court dismissed the case on summary judgment and the appellate court affirmed that outcome. A contributing factor in the Court of Appeals decision was that the employer conducted a prompt and thorough workplace investigation, which found the allegations related to the employee’s conduct to be credible.  

Williams highlights the need for employers to perform prompt and thorough investigations consistent the steps mentioned above.

Should you have any questions regarding performing workplace investigations, please feel free to contact the McDonald Hopkins attorney listed above.