S. Amir Kohan

Conducting Workplace Investigations

Investigations are appropriate in several circumstances within an employer’s organization.
They can be helpful in a grievance-handling effort and are essential in determining
the validity of discrimination complaints. Whenever there is a need to determine
facts surrounding a complaint, an investigation should be conducted. Some form of
this approach should be used when responding to safety or wage and hour complaints.
Interviews may or may not be necessary depending upon the availability of records that
can explain the facts.

Internal HR professionals are almost always given authority in state and federal law
to conduct an investigation on behalf of the employer. If the organization wants to have
an external investigator handle the fact-finding, there are some limitations imposed by
certain state laws. In California, for example, external investigators who are not licensed
attorneys must be licensed, private investigators. Other states have different requirements.
Legal advisors suggest that internal attorneys are not the best people to conduct
investigations because they could be placed in the position of having to testify about their
investigative activities while still providing legal advice to their employer.

Whoever is designated as the investigator should normally follow these steps:
1. Obtain a written complaint. The employee should write out a complaint that states
she was treated differently from others in similar situations based on a legally
protected category and that category should be identified. If she can do this, she
will have provided a prima facie case, which means it sounds good on its face.
2. Conduct interviews. Next, it is necessary to interview the complaining employee,
the supervisor or management person who is named as the offending decision-
maker, and any witnesses the employee says were there at the time. Sometimes
it is a peer who has been the offending party. When that is the case, at least one
interview of the offending party should be scheduled. The investigation should
follow whatever leads are uncovered until the investigator is satisfied that all the
facts have been uncovered that can be uncovered. Each step of the process should
be documented in writing and maintained in a complaint investigation file.
3. Make a determination. Once the facts have been determined as best as possible,
a determination should be made about the validity of the complaint. If the
complaint is valid, a remedy should be sought based on both legal and reasonable
requirements. If the complaint is determined not to have valid grounds, that
will be the determination. The decision should be documented in writing and
included in the investigation folder.
4. Give feedback. The employee who filed the complaint should be given feedback
about the investigation results and any decisions made as a result. It may or may
not be advisable to provide specific information about disciplinary action taken
against an employee. Your legal advisor can give you guidance about that in your
specific circumstances.

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