12 Steps to Conduct a Workplace Investigation

When medical practices are faced with a workplace issue that merits investigation, it is critical for the organization’s leaders to take adequate steps to ensure the proper enforcement of workplace rules. A well-executed investigation can help practices avoid exposure to greater liability from outside enforcement agencies or employee legal claims.

A well-executed investigation can help practices avoid exposure to greater liability.

However, not all employee disciplinary issues carry the same weight—and as such, determining the scope of the investigation depends largely on the subject matter of the violation. An allegation that an employee arrived late to work, for example, likely won’t merit an extensive investigation, whereas reports of workplace violence may require multiple witness interviews, additional security measures, and assistance from outside law enforcement. It is important to review the nature of the company’s obligations (legal and organizational) regarding the issue.

1. Determine when to investigate and whom to interview during the investigation.

• Practices should investigate an issue if any of the following take or are taking place: an internal complaint is filed; someone is being harassed, threatened, bullied, or intimidated; violence or other illegal behavior is witnessed; a government agency complaint or inquiry is received; an accident or injury occurs; or a civil lawsuit or criminal complaint is received.
• All investigations should include interviews with the complainant, the accused/offender, the victim, and any witnesses.
• The investigation should be conducted in a prompt manner to preserve relevant evidence and ensure that witnesses can more accurately recall the facts.

2. Decide who should conduct the investigation.

• An organization may choose in-house legal counsel who is not a witness to the investigation, a fair, impartial HR representative, or a third-party consultant as its investigator.
• The investigator should be impartial, objective, well-versed in company policies, and properly trained on how to conduct a workplace investigation.
• The investigator should have credibility with the complaining party and must make a good witness.
• As a general rule, if the matter concerns a harassment allegation, the investigator should not be the direct supervisor of the alleged wrongdoer or the complaining witness.
• Employers should conduct investigative meetings with individuals in addition to holding meetings with the investigator and the witness(es) present. Having a second pair of eyes and ears attend investigative meetings is particularly important during a harassment investigation, which may have a greater likelihood of resulting in legal action.

3. Plan the investigation.

• Begin by defining the initial scope of the investigation and review any related documents (electronic and non-electronic), such as policies, procedures, past practices, and personnel files.
• Outline a schedule and develop open-ended questions (who, what, when, where, why and how) for the interviews.
• Witness interviews should be conducted promptly and in succession, if possible. Investigators need not interview everyone with knowledge of the incident(s)—particularly if the additional interviews would be duplicative or fact corroboration is no longer needed.
• When conducting disciplinary meetings or interviews, employers should be aware of state and local laws limiting recording of conversations (e.g., state wiretap laws).
• Finally, employers should conduct any necessary or appropriate testing during the investigative process, including drug testing. But be aware that employers may be constrained from conducting a particular test by either federal or state laws or regulations.

4. Determine who has “need to know” information and how much they really need to know.

Contacts may include the accused employee’s supervisor, inside or outside counsel, other necessary managers, an IT manager (if a computer search is required), the accused employee (if suspension must occur during the investigation), security personnel, law enforcement agencies, internal auditors (if the issue is related to finances), and a risk management representative.

5. Review, secure, and prevent the destruction of any documents or policies valuable to the investigation.

Examples include policies or guidelines, employee documents, employee handbook, employee’s personnel file, code of conduct policy, employee’s performance review(s), security manual, expense reports, expense policy, and complaints or other performance notations.

6. Review the details of each situation before beginning.

• Rule out miscommunication, misunderstandings, or language barrier issues.
• Schedule the interview meetings with the complainant, victim(s), witnesses, supervisors (if applicable), and the accused/offender.

7. Take all necessary precautions and avoid promises of complete confidentiality.

• Instead, management should explain that information will be shared on a need-to-know basis. Practice leaders can maintain the proper level of confidentiality by exercising care in communicating investigative information.
• Determine what is necessary and relevant to the investigation, such as conducting a search of the employee’s personal workspace, reviewing relevant emails and electronic files, and contacting law enforcement if a search of the employee is necessary.
• Practice leaders should read state privacy laws related to employee searches or surveillance. Federal and state laws limit an employer’s ability to surveil employees in places where they have a reasonable expectation of privacy.

8. Initiate the interview process and set proper expectations with all involved parties.

• Start each interview by explaining the purpose, pledging confidentiality to include only those who “need to know,” and pledging a fair and prompt investigation with a realistic timeframe.
• Inform each interviewee that any information discussed cannot leave the room. Explain they will be held accountable if they choose to discuss this information.
• Avoid leading questions by only asking open-ended questions.
• Ask about the events that transpired, make sure notes are complete, and include direct quotes. Consider whether to ask for a written statement but do not require it.

9. Start the interview process with the complainant, the victim, and any witnesses.

• Follow step 8 and communicate that there will be no retaliation for registering a complaint or for participating in the investigation.
• Ask the complainant and/or victim, “What do you want to happen?”
• Ask the complainant and/or victim and witnesses if they have any notes, emails, or other documents/evidence.

10. Interview the accused or offender next.

• Follow step 8 and determine the accused/offender’s side of the story.
• It is important to convey the seriousness of the matter, then probe for possible motives by the accused/offender and by the complainant or the victim.
• Ask the accused/offender if they have any suggestions as to how the situation can be resolved.
• Do not give the appearance of predisposition and do not announce any decision immediately. Tell the accused the investigation is ongoing and will be concluded as promptly as possible.

11. Reach a decision, formulate a recommendation for action, gain proper approvals, and take corrective or disciplinary action.

• Consider if any of the company’s policies, guidelines, or practices were violated, and if so, consider the severity of the offense.
• Ask a series of questions before taking action, including:
• What has the company done in the past with regard to similar violations?
• Are there any federal, state or local laws that require specific action?
• How long has the employee been employed by the company and is there a track record of violating policies?
• What is the employee’s performance history with the company?
• Are there any other mitigating circumstances that could affect the decision?

12. Follow up with the complainant.

• Let them know the investigation is complete and the appropriate action has been taken.
• Do not share any confidential information regarding the investigation.

At the conclusion of the investigation, a written report should be prepared to document each step in the investigatory process. These documents should be kept in a locked investigation file that is separate from the employee’s personnel file, and any resulting discipline should be included in the employee’s personnel file.

For additional guidance on how to conduct a workplace investigation, Curi members may listen to our May webinar on the subject, or contact me directly (dee.brown@callhrexperts.com or 919-431-6096).